The system is broken.
It may be fixable, but it is definitely already broken, with the Knesset and 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” – which postponed the deadline for passing a state budget last summer – had been “an improper use of parliamentary power.”
While budgets sound boring and as non-historic as one can get, this particular budget law had been defined as a Basic Law, a quasi or precursor constitution that guides Israel in lieu of an actual constitution. Courts are not supposed to be able to strike down constitutional laws, only “regular” laws that lack “constitutional” status.
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 that were part of the law had already been spent.
At the same time, the court declared that the Knesset passed the law improperly, accompanied by a threat that it would veto any such successive law the moment it passes.
The court was ruling on the Hauser Compromise petition – named for former MK Zvi Hauser, who proposed it – that would postpone the deadline for passing a state budget while trying to avoid triggering an automatic new election.
While the law was changed and the deadline postponed, the country went to a new election in March after the new deadline was also missed.
All of which 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 that did not comply with its authority, as defined by its own budget basic laws.
The six majority justices said that a law could not be given extra deference before the court simply by titling it a Basic Law, if it did not have the character of such a law in addressing and reordering any and all related provisions previously 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.
Regardless of 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.
Moreover, 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.
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.
Criticism was also hurled from within the anti-Netanyahu bloc, with New Hope party leader Gideon Sa’ar making it clear that 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 government basic laws enabling the Likud-Blue and White coalition deal, and a Jewish-Nation State Law that brought a wave of legal and global criticism.
To date, they have criticized but have refrained from saying they could veto any of those.
In a past hearing on one Basic Law, they hinted 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 court effort 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 that 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 warnings from the minority justices and some commentators that this is beyond the power of the justices to fix, and 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 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.