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Israel’s Top Court Strikes Down Move to Curb Its Powers

Israel’s Supreme Court on Monday struck down a law limiting its own powers, a momentous step in the legal and political crisis that gripped the country before the war with Hamas, and pitted the court against Prime Minister Benjamin Netanyahu’s right-wing government.

The court’s 8-7 ruling has the potential to throw Israel’s national emergency government, formed after the Oct. 7 attacks, into disarray and reignite the grave domestic turmoil that began a year ago over the Netanyahu government’s judicial overhaul plan. Mass protests brought the country to a near-standstill at times, in one of the deepest political upheavals Israel had faced in its 75 years, and led to warnings of possible civil war.

The court, sitting with a full panel of all 15 of its justices for the first time in its history, rejected the law passed by Parliament in July that barred judges from using a particular legal standard to overrule decisions made by government ministers.

The decision comes at a precarious time for Israel, deeply engaged in a brutal war in Gaza and under nearly daily rocket fire from Iranian-backed militants along its northern border. It is seeking to project an image of strength to its enemies but has been shaken by the Oct. 7 Hamas-led surprise attack, by a shrinking economy, and by the alarm and pressure from its closest allies over the deaths of thousands of civilians in Gaza.

The much-anticipated decision did not come as a total surprise to Israelis. A television station last week reported on a leaked draft of the ruling. But it heralds a potential showdown that could fundamentally reshape Israeli democracy, pitting the power of the government against that of the judiciary.

Opponents of the attempt to rein in the judiciary held repeated demonstrations.Credit…Ohad Zwigenberg/Associated Press

The divisions over the law are part of a wider ideological and cultural standoff.

Mr. Netanyahu’s political allies and their supporters want to make Israel into a more religious and nationalist state. Their opponents, who hold a more secular and pluralist vision of the country, accused the government of undermining democracy by lowering the barriers to a majority doing whatever it pleases.

The ruling was swiftly denounced by Mr. Netanyahu’s allies, who in late 2022 formed the most right-wing and religiously conservative government in Israel’s history. The prime minister’s Likud party said the decision was “in opposition to the nation’s desire for unity, especially in a time of war.” In a statement, it slammed the court for ruling on the issue when Israeli soldiers are “fighting and endangering themselves in battle.”

Yariv Levin, the Israeli justice minister widely seen as the architect of the judicial overhaul, vowed to resume efforts to pass the package of controversial bills that included the newly overturned measure. He accused the high court of sowing divisiveness at a time when the nation is in danger.

“The Supreme Court judges’ decision to publish their ruling in the middle of a war is the opposite of the spirit of unity that we need in these days so our troops can succeed at the front,” Mr. Levin said.

Critics of Mr. Netanyahu and his allies have argued that, in fact, the government’s fixationon weakening the independence of the judiciary contributed to Israel being caught off guard by the Oct. 7 assault by Hamas that touched off the war, killed 1,200 people and seized more than 240 hostages, according to the authorities.

Mr. Netanyahu, center, at a weekly cabinet on Sunday. Justice Minister Yariv Levin is to his right.Credit…Pool photo by Abir Sultan

Yair Lapid, the parliamentary opposition leader, hailed the court for “faithfully fulfilling its duty to protect the people of Israel.”

Hours before the court made its decision public, the Israeli military said it would begin withdrawing several thousand troops from Gaza. Citing a growing toll on the Israeli economy after nearly three months of wartime mobilization, Israel will send home reservists from at least two brigades this week; three other brigades will be taken back for training, potentially removing thousands of soldiers from the war effort.

At the same time, the military said it was preparing for “prolonged fighting.” The Israeli Defense Forces spokesman Daniel Hagari said on New Year’s Eve that he expected warfare in Gaza to last “throughout” the coming year.

Members of Mr. Netanyahu’s coalition immediately seized on the argument that the court’s ruling would harm the country’s ability to prosecute the war in Gaza.

Itamar Ben-Gvir, the far-right ultranationalist who serves as Israel’s national security minister, said the decision was illegal and “a dangerous, anti-democratic episode — and most importantly, a ruling that harms the war effort of Israel against its enemies.”

For the overhaul’s opponents, it was a long-hoped-for victory — albeit one that evoked concern that the country might now backslide from wartime unity to yawning internal divides. Thousands of military reservists who said during the protests that they would refuse service if the law was passed set that vow aside and reported for duty after the war began.

Opponents of the judicial overhaul feared it would make the court much less able to prevent government overreach, and also make it much easier for the government to end the prosecution of Mr. Netanyahu, who is on trial on corruption charges.

Police officers using a water cannon in Tel Aviv in July as they tried to quell demonstrations over the judiciary overhaul.Credit…Oded Balilty/Associated Press

Kaplan Force, one of the activist groups that organized protests against the judicial overhaul, hailed the Supreme Court decision and called on all parties to obey it. “Today, one chapter ended in the battle to protect democracy — in a victory for the citizens of Israel,” the group said in a statement.

Brothers in Arms, an anti-overhaul group formed by reserve soldiers, warned of the risks of national disunity and also called on the nation to respect the ruling.

“We stand behind the independence of the Supreme Court,” the group said.

The court’s decision in large part centered on the concept of “reasonableness,” a legal standard used by many judicial systems, including in Australia, Britain and Canada. A government action is deemed unreasonable if a court rules that it was made without considering all relevant factors, without giving relevant weight to each factor or by giving irrelevant factors too much weight.

The prime minister’s political allies argue that reasonableness is too vague a concept, that it was never codified in Israeli law, and that judges apply it in subjective ways.

Mr. Netanhayu’s overhaul stripped the Supreme Court of the right to use the standard to countermand decisions by lawmakers and ministers. It was the first step in a plan by the government to limit the authority of the country’s most powerful court.

The Supreme Court angered the government when some of its judges cited the reasonableness standard to bar Aryeh Deri, a veteran ultra-Orthodox politician, from serving in Mr. Netanyahu’s cabinet. Judges said it was unreasonable to appoint Mr. Deri because he had recently been convicted of tax fraud.

The bill reining in the court’s powers amended one of Israel’s Basic Laws, which have quasi-constitutional status. The government argued that the Supreme Court had no authority to rule on a Basic Law. But on Monday, the court ruled, 12 to 3, that it did have that power, then decided, 8 to 7, to strike down the amendment.

Israeli analysts say that the Supreme Court never before intervened in, or struck down, a Basic Law. The high court had discussed such laws in the past but never ruled on them.

Responding to accusations of Supreme Court overreach, many defenders of Israel’s liberal democracy say that in a country that has one house of Parliament, no formal written constitution and a largely ceremonial president, the highest court is the only bulwark against government power. And the standard of reasonableness, they argue, is one of the primary tools at the judges’ disposal.

Members of Mr. Netanyahu’s coalition say the court is thwarting the rule of the people. Some had urged the court to delay its decision until after the war in Gaza is over.

The timing of the decision was crucial: two retiring justices would have been ineligible to participate in the decision had it been delivered after the middle of January. Legal analysts have calculated that without those justices, the court would have ruled to uphold the law, 7-6.

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