By John Q. Hosedrinker 
The government has declared it will not respect a High Court of Justice ruling concerning the Council of the Second Authority, escalating a dispute with the judiciary to a constitutional crisis. This defiance follows a court decision allowing the council to operate despite lacking a legal quorum, which the government claims violates the law. Critics, including the opposition and the president, have condemned this move, calling it a dangerous breach of trust and an assault on Israeli democracy. The controversy is linked to alleged government attempts to assert political control over media regulation, particularly concerning a proposed buyout of Channel 13.
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It appears we’re on the cusp of a significant constitutional showdown in Israel, with the government vowing to disregard a High Court ruling. This is a rather peculiar and technical point to ignite such a profound crisis, but perhaps that’s the strategy – to focus on something obscure and intricate, thereby weakening an entire branch of government. This push seems to stem from the prevailing far-right influence within the government, a situation that’s been brewing for about five years.
The motivations behind this move are not entirely surprising, with some suggesting it relates to specific groups wanting to avoid military service or tax obligations. At its core, it seems to be about the desire to implement laws and regulations without any form of oversight. This kind of unilateral action is unlikely to be accepted, and the echoes of similar power struggles are certainly audible.
The situation highlights the fundamental tripartite system of governance: the lawmakers (legislature), the executive (government), and the judiciary. Currently, the government is asserting that the judges are the ones straying from the law, and that the government itself is upholding it. However, in a well-functioning system, judges interpret the law, but crucially, the law itself cannot contravene fundamental principles of natural justice. Thus, a harmonious operation requires the law and the judiciary to be in sync.
When the government wields power through both the legislative and executive arms, attempting to sever the judicial leg of this structure is a precarious move. A government that loses the capacity for judicial interpretation is left with only the option of ruling by force, which in essence, ceases to be a government and leans towards military dictatorship. The current trajectory seems to mirror a pattern observed in both the US and Israel, where internal forces appear to be working towards dismantling their own governmental structures.
This development raises serious questions about the status of democracy, particularly in a region where Israel is often cited as the sole democratic nation. The decision to disobey the High Court instead of pursuing an appeal through the established supreme court channels is a key point of contention and confusion.
An interesting facet of Israel’s political landscape is its lack of a single, codified constitution. Instead, it operates on a system of basic laws and rights that hold semi-constitutional weight. Historically, attempts to formally codify a constitution have not reached fruition, leaving a complex framework that often requires consensus for amendments. The conventional method for addressing unwelcome court decisions would be to enact new legislation, yet the reasons why this path isn’t being pursued in this instance remain unclear, leading to a sense of unease and foreboding.
The situation feels like a descent into an “all-or-nothing” approach, a “scorched earth” policy that exacerbates existing problems. The argument that this approach has worked in America is a stark contrast to the current Israeli context, and there are concerns that this might be preparation for future actions, such as disregarding election results, which some link to the upcoming October elections and a perceived judicial conspiracy.
This echoes tactics seen elsewhere, such as in Turkey under Erdogan, where such actions often mark the beginning of more significant power grabs. One potential, albeit speculative, reason for this governmental defiance could be to establish a precedent for larger actions, perhaps preventing opposition parties from participating in elections. In Israel, the government has the authority to disqualify parties based on national security grounds, a decision that is typically subject to Supreme Court review. For example, a figure like Ben Gvir was previously barred from running due to alleged support for terrorism, a decision that was ultimately overturned by the Supreme Court.
Such an audacious act, if pursued without broad support, could realistically trigger widespread strikes and potentially even a popular uprising. Furthermore, concerns are often raised about figures like Netanyahu, who has faced legal challenges and then managed to be re-elected, leading to speculation about legislative changes designed to benefit his personal legal situation.
The notion that the law cannot violate natural justice is a concept that can be interpreted in various ways. When a government claims it is choosing to follow the law over the judges’ interpretation, it can sound like a convenient justification for disregarding judicial authority, especially if that government is seen as acting corruptly. While the government may be functioning, the democratic aspect is being severely undermined. It’s important to acknowledge that democratic processes themselves can be used to erode democracy; constitutional crises and executive power grabs, while detrimental, don’t automatically disqualify a nation from being democratic.
It’s worth clarifying that in Israel, the High Court of Justice functions as the Supreme Court when dealing with constitutional matters and state authority. The assertion that Israel “never really had a constitution” is a rhetorical tool that has proven effective in weakening its uncodified constitutional framework. Understanding concepts like a *de facto* constitution and an uncodified constitution is crucial for grasping the nuances of Israeli constitutionalism.
This situation can be likened to historical moments where powerful figures have challenged judicial authority, famously exemplified by the quote attributed to John Marshall: “John Marshall has made his decision; now let him enforce it!” In Australia, for instance, a state government enacted a law restricting public assemblies after a terrorist attack. The courts, however, struck down the law, citing a violation of freedom of political expression – a clear instance where the court’s interpretation of fundamental rights trumped the enacted law. However, such judicial interventions require robust legal reasoning; reckless rulings can erode credibility and empower the government to challenge the judiciary. Conversely, laws can also constrain judicial power by mandating specific outcomes.
The current confrontation forces a stark choice, potentially leading to a loss of credibility for either the courts or the government. Regardless of the outcome, democracy itself is likely to suffer as the losing side may feel the system no longer serves them. For those familiar with American legal principles, concepts like due process and equal protection of the laws serve as similar foundational guarantees, embedded within the common law tradition.
This kind of crisis can only truly unfold within a democracy, as a dictatorial regime would likely not allow a high court to rule against it in the first place. Ironically, the Likud party, which has positioned itself as the sole democratic force, is now headed by Netanyahu, who is perceived as attempting to control the composition of his government, preventing internal challenges.
The Knesset’s own website acknowledges the absence of a formal written constitution, highlighting a system of basic laws that have evolved with semi-constitutional status. The inadequacy of this provisional arrangement for modern needs underscores the urgency of completing this constitutional task. Projects to draft a constitution by broad consensus have been initiated, aiming for wide support before ratification by the Knesset and the public.
The debate over whether a law was struck down for violating a constitution or for infringing on fundamental rights like freedom of expression underscores the interconnectedness of these legal principles. The idea that democratic rules can be ignored within a democracy is a paradox, much like laws can only be broken in a society that has laws. It serves as a stark reminder that democratic systems are perpetually vulnerable to power grabs, and that even within a democracy, the very rules that define it can be subverted. The capacity to ignore democratic rules is, in itself, a function of possessing those democratic rules to begin with.