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Constitutional Crisis in Israel

Israel lacks a formal written constitution. Instead, it operates based on "Basic Laws" that have been in effect for more than 65 years and are interpreted and applied by the Supreme Court.

A vote on Monday by the Knesset, Israel’s parliament, to amend those laws and limit the power of the court has thrown the country head-on into a political crisis.

In response to the vote, demonstrators occupied central areas in Israel's biggest cities last night, with police efforts to disperse them using water cannons proving ineffective. In a national address Prime Minister Benjamin Netanyahu urged calm, while also steadfastly defending his stance.

Netanyahu saw passage of the law as so critical that he left the hospital less than 24 hours after emergency heart surgery to vote in the Knesset. Similarly, Israeli progressives saw the prevention of the law as so crucial that around 20,000 of them braved extreme heat to march the 40 miles from Tel Aviv to Jerusalem over the weekend.

From a legal perspective, the vote on Monday removes the Supreme Court's power to strike down laws and government appointments deemed 'unreasonable.' This standard, incorporated into Israeli law during the 1980s, often served as a de facto system of checks and balances. Yet, Netanyahu's right-wing coalition partners criticized the court’s exercise of this authority as anti-democratic, arguing that it is merely a linguistic construct.

Monday’s vote has triggered a full-scale confrontation between left and right, secular and religious, dove and hawk, over the soul and identity of the Jewish state.

Many Israeli civil society groups have called on the Supreme Court to overturn the new law — a move that would all but guarantee a constitutional crisis.

When Israel was founded in 1948, it went without a constitution because its early leaders — primarily secular Jews from Eastern Europe — could not reach consensus on the role of religion in relation to democracy. In the 1950s, the Knesset began introducing “Basic Laws," which were meant to serve as groundwork for a future constitution. In 1980, Supreme Court Judge Aharon Barak, a strong advocate of human rights, introduced the concept of 'reasonableness' as a criterion for invalidating government decisions.

In 2018, the court upheld a nation-state law declaring Israel a nation-state for Jewish people. Critics said it further downgrades the status of Israel’s Palestinian minority, which makes up about 20 percent of the country’s population.

Although the 2018 ruling reflected a rightward shift in the Israeli electorate, the court's application of the reasonableness doctrine has more often led to progressive outcomes. The doctrine has been employed to compel the army to prosecute a colonel whose soldiers mistreated Palestinian detainees, to order the attorney general to press charges against bankers in a share price manipulation case, and to ban Arye Deri –– leader of the ultra-Orthodox Shas party who was serving as interior and health minister –– from government after an indictment for corruption.

The new law could pave the way for Deri to lead three ministries in Netanyahu’s government despite his past imprisonment, to inhibit the court from blocking settlement-building and annexation of Palestinian land, and to aid the Netanyahu government in removing Israel’s current attorney general, Gali Baharav, who has overseen the prosecution of Netanyahu on charges of bribery, fraud, and breach of trust.

This week’s vote was only one of a series of proposed changes that would point Israel in a more populist and authoritarian direction. Netanyahu’s justice minister, Yariv Levin, wants to grant the Knesset more authority in selecting judges. A separate law that would prohibit all public demonstrations of support for the Palestinian cause received its preliminary reading yesterday.

President Biden has been reserved in his criticism of the new law, perhaps because he lacks personal influence with Netanyahu and his team. However, a Trump-era legacy might provide an unexpected counterbalance. The Abraham Accords, which Israel signed with Bahrain, Morocco, and the United Arab Emirates, are now potentially jeopardized. The two Gulf countries – the UAE especially – have repeatedly and openly condemned Israeli leaders and policies

In mid-March, a senior United Arab Emirates government official met with Netanyahu and reportedly warned him that the Israeli government’s conduct was straining ties between the countries. “The direction of this government goes completely against the Abraham Accords,” the official was quoted as having told Netanyahu.

In light of straining ties with the US, Israel can ill afford to lose the security agreement. For now, Netanyahu appears to be acting against his own interest. Whether or not ensuing protests and unrest may cause him to back down, remains to be seen.


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