The Israeli Supreme Court’s historic verdict against Netanyahu’s judicial overhaul law | Explained

The decision marks the first time that Israel’s highest court struck down a quasi-constitutional Basic Law — what does the ruling say and what happens next?

The story so far: Israel’s Supreme Court on January 1 struck down a law limiting its own powers — a momentous step that threatens to reopen the fissures in Israeli society that preceded the country’s ongoing war against Hamas. The controversial legislation passed by Israeli lawmakers on July 24, 2023 prevents judges from striking down government decisions on the ground that they are ‘unreasonable.’

The Court’s 8-7 ruling for the first time struck down an amendment to the country’s quasi-constitutional “Basic Laws” by underscoring that it would deal a “severe and unprecedented blow to the core characteristics of the State of Israel as a democratic state.” The revoked law was part of Prime Minister Benjamin Netanyahu’s divisive judicial overhaul plan that sparked months of mass protests and triggered one of the deepest political upheavals in Israel’s 75 years. Thousands of Israeli army reservists, who constitute the backbone of the military, also threatened to stop reporting for service as a mark of protest. However, they subsequently set aside the vow with the onset of war.

The decision, however, did not come as a total surprise — a draft of the ruling was leaked to the media during the last week of December. Reacting to the leak, Minister of Justice Yariv Levin claimed that the “citizens of Israel expect the Supreme Court not to publish during a war a ruling that is controversial even among its judges.” Echoing similar sentiments, the speaker of the Knesset, Amir Ohana, added that “a time of war is certainly not the time to establish a first precedent of its kind in the history of the country.”

The timing of the verdict was also crucial as a delay of a few weeks might have produced a different outcome. The recent retirement of two justices, Chief Justice Esther Hayut and Justice Justice Anat Baron, imposed a deadline of mid-January to pronounce the ruling, after which they would have been ineligible to participate in it.

“It’s a small and fragile majority. Two of those justices are no longer presiding in the court — and today’s court would likely have a majority take the opposite view,” law professor Yedidia Z. Stern, who was involved in talks to broker a compromise on the judicial overhaul, told a news portal.

In the absence of a written constitution, the country’s Basic Laws serve as an informal constitution, governing core constitutional ethos such as the creation and role of state institutions, relations between state authorities, and the protection of some civil rights.

The power to review the legality or ‘reasonability’ of laws is analogous to the power of judicial review vested with Indian courts. There is no law defining judicial review powers; the grounds for judicial intervention in administrative affairs have been promulgated through court rulings.