Israel's High Court Puts an End to the Misuse of Basic Laws

Haaretz Editorial
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Supreme Court President Esther Hayut in court last year.
Supreme Court President Esther Hayut in court last year.Credit: Shalev Shalom/Pool
Haaretz Editorial

It’s hard to overstate the importance of Sunday’s High Court of Justice ruling, just as it’s hard to understate the gravity of what the cabinet and Knesset did. The court ruled that the cabinet and Knesset abused their power as a constituent assembly to enact what were effectively fake Basic Laws.

Basic Laws are exactly what their name implies – laws providing the foundation for Israeli law. 

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They are also the closest thing to an Israeli constitution in the absence of an actual constitution. It’s hard to believe that anyone saw the so-called “Hauser compromise” – that is, the amendments to the Basic Law on the State Economy and the Basic Law on the Knesset that MK Zvi Hauser proposed to delay the deadline for passing the state budget by four months – as a new cornerstone of Israeli law. Everyone knew this was a hastily thrown together constitutional improvisation designed to enable state funds to be transferred to the ultra-Orthodox parties, prevent the dissolution of the Knesset and give Prime Minister Benjamin Netanyahu another few months in which to continue deceiving his partner in government, Benny Gantz. This was achieved by labeling the amendment a Basic Law so that the justices would be afraid to overturn it.

The majority justices discussed the fact that the Hauser compromise was a one-time measure meant to solve a momentary political problem at length. When Netanyahu isn’t able to form a government, he’s willing to embrace any trick or shtick, including frequent changes in the very laws that are supposed to provide a stable foundation for Israel’s democratic system of government. Supreme Court President Esther Hayut correctly described the lawlessness that has been going on for more than two years: “The Basic Laws, like the state budget, have turned into game pieces.”

The ruling laid down three yardsticks for identifying abuse of the Basic Laws – stability, generality and the law’s integration into our constitutional fabric. A Basic Law must be characterized by all three of these elements; it is not a temporary solution to a particular government’s problems. If the law wasn’t intended to be an integral part of Israel’s constitution, it isn’t a Basic Law.

It’s no accident that the same lawmakers who are using the Basic Laws as game pieces raised hollow complaints about “a coup” (Yariv Levin), a “severe blow to democracy” (the Likud party) and even called for disobeying the court’s “absurdities” (Bezalel Smotrich). That’s how people participating in an unprecedented public fraud behave.

The court didn’t discover anything that the legislators and the public didn’t already know; it merely made it clear that the party’s over. But its words are still relevant, because even now, there are people plotting to enact fake “Basic Laws” to satisfy fleeting political caprices – for instance, an amendment to the Basic Law that would allow a one-time-only direct election of the prime minister to ensure the continuation of Netanyahu’s rule.

The court was wise to offer a solution before the need arose and provide legal tools for protecting ourselves against changes in the rules of the democratic game.

The above article is Haaretz’s lead editorial, as published in the Hebrew and English newspapers in Israel.

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