I recently discovered a hornets’ nest attached to the stalk of a clary sage in the Jerusalem Botanical Gardens. The nest was about 10 cm. in height, and seemed like a well-ordered, purposeful unit, inhabited by several dozen busy European paper wasps, minding their own business, without getting into each other’s way. It transpired that these wasps are a non-aggressive species, which explains why I managed to photograph them at close range, without being stung.
My first thought was that it is a shame that our government, which many compare these days to a hornets’ nest, does not function in an orderly and purposeful manner as does this nest.
My second thought was that the figurative definition one has for “hornets’ nest” as “a very difficult or unpleasant situation, especially in which a lot of people get very angry and complain” (Cambridge Dictionary), well describes the situation today in Israel in general, and in the government in particular, but not the physical wasps’ nest I was observing.
My third thought was that a wasps’ nest is not a democratic system, in which individual wasps have a choice as to how to live and what to do, though the natural system itself is designed to ensure the continued survival of the wasps’ community. In the particular case of the wasps I was observing, the other day I returned to take additional photographs of the nest, and discovered that it had been partially destroyed and the wasps were all gone.
Is Israel a hornets' nest, and will it vanish like one?
There are those who predict that if we do not soon get our act together, and instead of getting angry and complaining, start acting in a logical manner to resolve the issues we confront, Israel might actually vanish like the hornets’ nest in the Botanical Gardens.
I believe this is a gross exaggeration, though undoubtedly a lot of damage is liable to result if we do not start to act constructively, rather than just blame each other for causing the destruction of Israel’s democracy.
A good example of this situation is an ongoing issue which will come to a peak on Tuesday morning. Tomorrow the High Court of Justice, with a bench made up of all 15 Supreme Court justices, will be convening to deal with petitions to cancel, or change an amendment to Basic Law: The Judiciary, that restricts the courts in applying the cause of reasonableness (or of unreasonableness) in cases in which the decisions of government ministers (but not those of administrators) are being dealt with.
The main issue that is causing most of the rumpus is not the issue of reasonableness or unreasonableness itself, but the question of whether the Supreme Court is entitled to deal with Basic Laws, and especially whether they are entitled to nullify complete, articles in, or amendments to basic laws.
Since the Knesset decided in 1950 that in the absence of an agreement as to whether it should prepare a full constitution, as provided for in the Proclamation of Independence, the Knesset should pass a set of basic laws, which once completed would together constitute Israel’s constitution, it has been clear that basic laws are regarded as something different from ordinary laws.
However, to the present, no rules have been laid down as to how basic laws should be approved, amended or canceled, and as to whether they should or should not be subject to judicial review, like other laws. Today, the main differences between basic laws and all other laws are that the words “Basic Law” are included in their title, and the fact that the title is not accompanied by the year in which they were originally passed.
The fact that to the present the Supreme Court, sitting as the High Court of Justice, has not dealt with basic laws, does not result from it being legally denied the right to do so, but from custom – especially the decision of previous generations of supreme court justices, to treat them with special respect, as if in essence they are superior. As long as the legislators treated basic laws with special respect, the courts had no reason to do otherwise.
HOWEVER, IN the last decade, basic laws have been somewhat debased, since ordinary bills have on occasion been submitted as basic laws in order to escape judicial review. Ten years ago, when Basic Law: Referendum came up in the Knesset plenum for preliminary reading, MK Yariv Levin (today, the justice minister), who initiated the bill, admitted that he had decided to submit it as a Basic Law for this reason – not because he thought that it warranted being a separate Basic Law. The same consideration continues to be applied to other bills to the present day.
In addition, the political instability since the end of 2018 has resulted in frequent amendments to Basic Law: The Government, and Basic Law: The Knesset, to enable all sorts of experiments with the so-called Norwegian Law, and alternate prime ministers, which have involved instability and confusion.
In fact, there is only one way in which the issue of basic laws can be resolved, which is by means of passing Basic Law: Legislation – a fundamental basic law that has never been enacted because of the numerous controversies it involves.
Such a law, once enacted, will lay down a hierarchical order between basic laws and ordinary laws, and introduce special provisions for passing, amending, and canceling basic laws, including special parliamentary majorities for doing so. At the same time Basic Law: The Judiciary will have to be amended to deal with the conditions and limitations of judicial review for the various types of laws.
Today, in the absence of Basic Law: Legislation, the supporters and opponents of the judicial/constitutional reform are holding vociferous arguments as to whether the HCJ may or may not touch basic laws, or more accurately, recent controversial amendments to basic laws. Speakers on behalf of the coalition have warned Supreme Court President Esther Hayut and Attorney-General Gali Baharav-Miara not to dare let the HCJ touch the recent amendment to Basic Law: the Judiciary; while Knesset Speaker Amir Ohana has actually threatened that the Knesset might not accept a HCJ ruling that will dare do so.
This is definitely a “hornets’ nest” in the figurative sense.
How exactly the HCJ will face up to this situation is anyone’s guess. There are those who believe that the Court will try to remove this hot potato from its table, without taking any action. Others believe that it will dare declare the recent amendment to Basic Law: The Judiciary, to be unconstitutional, and thus herald a massive constitutional crisis (some say we are already in the midst of such a crisis).
I am inclined to support the prediction that the court will try to find a way to return the issue to the Knesset for reconsideration and compromise.
However, since Hayut will be retiring next month, it cannot be excluded that she will try to sway the Court’s decision towards the second, radical option, which it is assumed she favors. The liberals are still the majority among the Supreme Court justices, but soon they are likely to be replaced by a conservative majority, and this might well be the last chance for the liberals to have their say.
We shall soon know.
The writer worked in the Knesset for many years as a researcher and has published extensively, both journalistic and academic articles, on current affairs and Israeli politics. Her most recent book, Israel’s Knesset Members – A Comparative Study of an Undefined Job, was published by Routledge last year.