Israel faces the most serious constitutional crisis in its history

Over the past nine months, Israeli cities have seen weekly mass demonstrations against plans by the coalition government, headed by Prime Minister Benjamin Netanyahu, to limit the power of the country’s judiciary. Tens of thousands have turned out regularly to protest at what they fear is nothing less than a government plot to undermine the country’s democratic system. In contrast, the government and its supporters say they are merely using the law to curb the power of unelected judges to thwart the will of the people.

This increasingly acrimonious confrontation that has divided the country is reaching a climax amid forebodings of possible civil war.

On September 12, Israel’s supreme court, the High Court of Justice (HCJ) – whose power to strike down laws the government is trying to limit – is due to rule on petitions against a piece of legislation passed by the Knesset (parliament) at the end of July, known as the “reasonableness law.” This law will prevent the HCJ from striking down government decisions and appointments on the grounds that they were “unreasonable.”

One recent case where the HCJ invoked this principle was when it ruled this January that Netanyahu had acted “unreasonably” in appointing Shas party leader Aryeh Deri as a minister in his government because of Deri’s criminal convictions. Netanyahu had complied with the court ruling at the time.

To external observers, this “reasonableness” law may not appear by itself to deal a deathblow to democracy, but opponents of the government see it as the opening salvo in the government’s war on HCJ, which provides the only check on government power in a country with no constitution and no second parliamentary chamber. Laws to give the government control of the committee that appoints judges and the power to override any ruling by the court to strike down legislation are in the pipeline. The spectre of such contentious legislation has sparked fears across Israeli society that the government is changing the fundamentals of the country’s democratic system, thereby effectively trying to establish an elected dictatorship.

An opinion poll conducted after the Knesset passed the reasonableness law, found that 56 percent of Israelis feared the government’s judicial overhaul could trigger a civil war. And a succession of senior political, military and security figures have warned of the same.

The issue has spread to the ranks of the military. The head of the Israeli Defence Force (IDF), Lt Gen Herzi Halevi urged the thousands of reservists to rethink their decision not to report for duty in the service of what they consider an autocratic government. He warned that Israel will be unable to continue to exist as a state without a strong and unified army.

Amid such dire predictions, it is small wonder that Hassan Nasrallah, head of Israel’s arch-enemy Hezbollah, recently predicted that Israel was “on the path to collapse, fragmentation and disappearance, God willing.”

While such rhetoric is undoubtedly overblown, Israel is facing an unprecedented constitutional crisis. The reasonableness law, on which the HCJ must rule, forms part of Israel’s Basic Laws. In a country without a constitution, such laws have semi-constitutional status. The petitions submitted to the court argue that the new law is unconstitutional because it damages the system of checks and balances fundamental to a democracy.

If the court were to rule in favor of the petitions and strike down the law, it would be the first time in the country’s history that the court had cancelled a Basic Law. That’s why the decision is so crucial. And, while any government would normally bow to rulings by the HCJ, Netanyahu has so far not promised to do so, arguing that the court itself had no right to strike down a Basic Law. A government refusing to bow to an apex court ruling will be unprecedented and, in Netanyahu’s own words, take the country into “uncharted territory.”

As Israelis hold their breath to see what the court decides, how the government reacts and what impact this has on the way the country is governed, President Isaac Herzog has made a fresh attempt to avert the looming constitutional crisis. On September 4, he announced that he was hosting talks between the government and opposition parties aimed at reaching a compromise on the judicial overhaul. Such talks had failed earlier despite months of meetings between the parties. While both sides have been quick to deny any willingness to back down on their demands, eventually, a compromise solution will have to be found.

Interestingly, while within opposition ranks, some see the HCJ as wielding too much political power, on the government side, too, some people acknowledge the need for the court to play some political role in a system that lacks any other check on the power of the government.

Agreeing to what that role should be and the right balance of power between the judiciary and the executive is a difficult task. There is no doubt that violence and civil war are unlikely to be the outcome of this crisis, but given the lack of trust and enmity between the political factions and the deep social divisions exposed by the continuing street protests, the problem is unlikely to be resolved soon.