Is Ohana right that the High Court can't strike basic laws? - analysis

Knesset Speaker Amir Ohana caused outrage among anti-judicial reformists and opposition parties on Wednesday night when he said the High Court of Justice does not have the authority to strike down basic laws, and that such a decision would undermine the very status of the quasi-constitutional laws.

National Unity MK Gideon Sa’ar said, “A government that does not respect court rulings will lose its own legitimacy.”Protest leaders described Ohana’s statement as “criminal.”

Justice Minister Yariv Levin and Likud MK Tally Gotliv issued statements in support of Ohana. Levin said his statement was “courageous.”

Yet for all the bluster of opposition about the statement being a violation of the rule of law, and all the back-patting of Ohana by the coalition, there is no definitive answer on judicial review of basic laws because there is an unclear legal gap in the Israeli system.

The legal debate is politicized because of the hearing next Tuesday on the Law to Cancel the Reasonableness Standard. The controversial judicial reform legislation was a basic law amendment, and petitioners are hoping that the court strikes it down as one last-ditch effort to prevent a coalition political win. Yet the problem of judicial review of basic laws needs to be viewed on its own merits, not on immediate political benefit.

Israel does not have a constitution. The Basic Laws were introduced under the Harari Compromise in 1950 to be assembled into a constitution at an unspecified date. Basic laws have many issues that prevent them from fully being considered constitutional articles. There is no special voting mechanism to legislate a basic law. It can be passed the same as any other piece of legislation, just with “basic law” tacked on in front.

These laws have very little supremacy over normal laws. As the Knesset is the power as a Constituent Assembly, it could be argued that these laws are given constitutional superiority, but there is little to distinguish them from normal laws without the name.

Some of them, such as Basic Law: The Nation-State, have a provision on rigidity, preventing them from being changed except by a basic law adopted by a majority of MKs. Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of Occupation, have superseding provisions that prevent them from being contradicted.

The ability of judicial review was developed through the Supreme Court’s interpretation of these last two basic laws, and the superseding clause acted as a constitution and allowed for the court to cancel laws on its behalf. Judicial review is controversial for many because they see the court as having seized the power for themselves in the so-called 1990s constitutional revolution. Yet while reformists have attempted to regulate this authority as part of the judicial reform, the court’s decisions under this power have become widely accepted.

The court has never before struck down a basic law or amendment, so there is no precedent to defer to. The court has stated in precious rulings on basic laws that it has the power to strike down basic laws, but only against the most extreme of legislation or if it threatened the basic democratic and Jewish values undergirding the state. If a law called to legalize genocide or some other absurdity, the court could strike it down.

Proponents of the court’s ability to strike down basic laws argue that there needs to be a check on the Knesset’s constitutional authority to prevent abuse of the power to pass personal laws that were created for political benefit.

Some laws could also be passed to gain immunity as basic laws and were unsuitable as a constitutional article, and there could be others still passed through improper procedure. The ability to strike a basic law is also needed to settle a contradiction between two different basic laws.

Yet if the laws are constitutional articles, as the court has determined, striking them down also undermines their superior status to other laws. Ohana’s point wasn’t a threat, as opposition members asserted, but a warning.

“If the High Court strikes down a basic law, then all the decisions it has made thus far relying on the higher status of basic laws are null and void,” Ohana said.

If the court has been conducting a review of regular legislation on the basis that basic laws have a special status, then removing the status that underpins the system would leave it without merit. The court would simply be pitting law against law at its own discretion.

This is in part why Ohana said the move would be an affront to the Knesset and democracy because it would infringe on its powers, such as the Knesset’s constitutional authority. Reformists argue that as the constituent assembly, the Knesset is the only body authorized to establish constitutional articles.

Gaps in Israel's legal system

While the frozen judicial reform bill to limit judicial review was controversial, it would have enshrined the power even, as it limited it, and set clear boundaries clarifying that there is no review of basic laws. There is no legislation that details what happens if the court has the power to strike down a basic law.

Basic Law: Legislation has long been proposed to establish the limits and the boundaries of the relationships between the branches, but as of now, there is a massive gap in Israel’s system.

In this gap, this lacuna, Ohana has just as much right as any of the members of the opposition who claim the court can review basic laws. Both sides have good legal arguments to support their claims. It is a gap that both the opposition and coalition need to work to fill to prevent a crisis.

Yet instead of proposing legislation and working together, they have chosen to plunge together down the rabbit hole and see who survives.