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Knesset, High Court: Who broke Israel’s system? – explainer

CM 25/05/2021


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The system is broken.

It may be fixable, but it is definitely already broken with the Knesset and the High Court of Justice in open war.
Is the Knesset or the High Court responsible?
On Sunday, the High Court declared that the Knesset’s “Hauser Compromise” – that postponed the deadline for passing a state budget last summer – had been “an improper use of parliamentary power.”
Budgets sound boring and as non-historic as one can get.
But this particular budget law had been defined as a basic law.
Basic laws are supposed to be Israel’s quasi or precursor constitution – since it actually incredibly still has no constitution after 73 years.

Courts are not supposed to be able to strike down constitutional laws, only “regular” laws, lacking the exalted “constitutional” status.
In fact, technically the court did not even cancel the law.
Pulling a passive-aggressive tightrope act, the justices said there was no point in canceling the law this time because the funds which were part of the law had already been spent.
At the same time, the court’s declaration that the Knesset passed the law improperly was accompanied with a clear threat to veto any such similar law in the future the moment it would be passed.
The court was ruling on a petition against what became known as the “Hauser Compromise,” named for former MK Zvi Hauser who proposed passing a bill that would postpone the deadline for passing a state budget with the aim of avoiding setting an automatic new election.
While the law was changed and the deadline was postponed, the country ended up going to a new election in March – the fourth in two years – after the new deadline was also missed.
All of this though is beside the point.
What matters is that the High Court said it had a basis for intervening because the Knesset had called something a Basic Law which did not comply with its authority as defined by its own other Basic Laws on budget issues.
The six majority justices said that a law could not be given extra deference before the court simply by titling it as a “basic law” if it did not have the character of such a law in addressing and reordering any and all related provisions passed by the legislature.
The justices in the majority said that the Hauser Compromise law was crafted in such a way that it could only apply to the specific time period and government in question and not to future governments.
They said a basic law must have the character that allows it to potentially apply to many governments over a wide period of time and circumstances.
Right or wrong about these characterizations, the majority view brought on a dark warning from the three justices in the minority.
The dissenting three said the court was endangering itself by venturing into waters that would be perceived as political.
In addition, they argued that the court lacked the authority to define what characteristics should be part of a Basic Law and that there was no point in causing controversy when even the justices in the majority acknowledged that they were too late to stop any of the funds from being used.
Whether right or not in the world of philosophy, the minority justices were right about the political response.
Knesset Speaker Yariv Levin (Likud) said he found the ruling baseless and shocking.
“We are witnessing a crazy incident in which a gang of six people use their legal mantle to carry out a coup,” Levin said. “The decision has no standing, because it goes against the fundamental principles of the sovereignty of the nation, the separation of powers and the rule of law.”
Former justice minister Ayelet Shaked said the justices overstepped their bounds, proving the need for more conservative appointees on the court.
If criticism had only come from Religious Zionist Party leader Bezalel Smotrich or Itamar Ben-Gvir, it might have been dismissed as criticism on the margins. But Levin and Shaked are heavyweights.
Moreover, even within the anti-Netanyahu bloc, New Hope party leader Gideon Sa’ar has made it clear he wants to restrain the High Court.
From the justices’ unusually strong wording, it seems they wanted to fire a loud warning shot across the Knesset’s bow.
The justices have been faced with green-lighting an indicted prime minister to form a new government, allowing massive changes to the basic law regarding government to enable the Likud-Blue and White initial coalition deal and a Jewish-Nation State Law, which brought a wave of legal and global criticism.
To date, they have criticized, but refrained from saying they could veto any of these.
In a past hearing on one basic law, they seemed to hint that they did not like the law in question, but that absent a law granting the ruling class the power to commit open crimes, the court could not intervene.
Sunday seemed to be a try by the court to push back, without any real world consequences that might feed further anger from the political class.
One could blame the Knesset for playing with the basic laws instead of taking them seriously and only using basic laws for grand changes which are expected to last for decades or more.
In the US’s nearly 250-year history it has only changed the constitution 27 times, the last time in 1992.
From any objective standpoint, the Knesset has not taken as long-term a view with recent basic laws.
But the minority justices’ and some commentators’ warnings that this is beyond the justices’ power to fix, that they must let the Knesset and the public work these issues out, could prove true.
If the Knesset or the government ceases to heed rulings of the High Court or gains enough support to neuter the court, what will the justices have achieved?
Both the Knesset and the High Court have a responsibility to try to avoid this showdown.
This week’s High Court ruling and the recent basic laws have already broken large aspects of the system.
How soon a stable and responsible government is formed may answer to what extent the damage can be fixed.

Source: Jerusalem Post

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CM

The host of Coffee Mouth Scare Crow Show and CEO of 452 Impact, Inc. Here is food for thought. Romans 6:23 "For the wages of sin is death; but the gift of God is eternal life through Jesus Christ our Lord." John 3:16 "For God so love ed the world that he gave his only begotten Son, that whosoever believeth in Him shall be saved."

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