Israel’s Supreme Court heard arguments this week against the first and most moderate of Prime Minister Benjamin Netanyahu’s judicial reforms.
If the Court tries to overturn the reform, it could set off a constitutional crisis, since Netanyahu’s government says, correctly, that there is no basis for the Court to reject changes to the country’s Basic Laws, the quasi-constitutional laws that define Israel’s government and from which the Court derives its authority.
Conversely, if the Court decides that it lacks explicit legal authority to overturn Basic Laws, then Israel will have de facto legislative supremacy. That may be what the country’s first prime minister, David Ben-Gurion, wanted. But it could open the door for Netanyahu’s government — or any government — to move beyond modest corrections and to make new, sweeping changes to the country’s basic structure, based on a simple majority vote in the Knesset.
Fortunately, there is a precedent that could guide Israel toward a win-win scenario.
In 1996, the new Constitutional Court in South Africa, established under the interim constitution after apartheid, rejected the final version of the country’s constitution, sending it back to the legislature for amendment. The legislature, which was officially tasked with writing the constitution, made several amendments, and the Court gave its blessing to the final document.
The same could happen in Israel. The Supreme Court could reject the judicial reform, but suggest ways it could be changed to pass muster, thus asserting its power of judicial review over Basic Laws.
The Knesset could make those changes, asserting its power to change Basic Laws. The judiciary’s powers could be limited by the reform, but at the same time, the Court would have defended judicial independence. A possible win-win, pulling Israel from the brink.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the new biography, Rhoda: ‘Comrade Kadalie, You Are Out of Order’. He is also the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.
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