Well, it finally happened. The executive branch – Israel's government– has apparently had enough of the activist, self-selected Supreme Court endeavouring to micro-manage policy decisions that have nothing to do with it.
Just about every major government decision not to the court's liking appears to be barred from implementation. This leads to months, if not years, of appeals and counter-appeals, preventing the government from moving forward with its programs for the nation.
The government, as the executive, is a body elected by the people; the High Court is not. It is therefore unaccountable to anyone except itself. In a normal democratic environment, the legislature enacts laws which are implemented as policy by the elected representatives of the people -- Israel's parliament, the Knesset -- or by the executive.
In case of disputed matters involving law, the Courts make rulings to ensure justice. This is their role – to interpret and uphold the law through judicial decisions. It is not their function to make laws (the role of the legislature), or to determine policy (role of the executive), which they appear to do by negating governmental implementation of executive decisions --decisions which normally lie beyond the scope of judicial authority.
In the instance of Israel, the separation of powers doctrine -- which determines the limitation of powers between each branch of government to avoid confusion and overlap -- is obscured by the fact that, as in the United Kingdom, there are no clear guidelines defining the differing authority of three branches: the legislative, the judiciary and the executive.
This is due to two main factors -- the lack, as in the United Kingdom, of a written constitution delineating powers between the three branches, and the conflicted role of the attorney-general whose apparent mandate is not only to advise the government on legal matters, but also to represent it when necessary and to prosecute it when appropriate.
It was predictable that one day a serious, dramatic, clash between the government and Israel's activist High Court would lead to a constitutional showdown. This happened on Sunday, July 5, 2026. For the first time in Israel's nearly 80 year-old history, the government announced it would not abide by a High Court ruling.
The matter involved a blatantly wrong, and openly slanted, decision by the court to the effect that the commercial broadcasting regulatory body (Council of the Second Authority) could continue to conduct operations notwithstanding the fact that they legally lacked a quorum to do so.
Communications Minister Shlomo Karhi "accused the judges of the High Court of being drunk with power, and said their rulings could not override explicit provisions of the law." He added, "The rule of law is not the rule of judges. Today, the government made it clear: When the High Court tramples the law, the state will not comply with it".
Quite so.
In support, Justice Minister Yariv Levin explained that in a "democratic state, the Knesset legislates the law, and the court is obligated to apply it. When a ruling stands in direct contradiction to the wording of the law, this is not judicial review but rather a violation of the principle of the separation of powers".
To be expected, the government's opposition parties, scenting an opportunity to vilify the government for their own ends, together with the attorney-general and the president himself, Isaac Herzog, strongly criticised the government. They accused it of causing a constitutional crisis and of violating the rule of law.
In hand with the Court, Attorney-general Gali Baharav-Miara, said that the government's declaration "undermines the fundamental principles of the rule of law." She no doubt looks forward to once again prosecuting members of the government for their decision.
Among the opposition parties, the leftist Democratic party holds that the government's stance is an attempt "to weaken democracy and keep its grip on power even if it loses at the ballot box."
The reality, however, is that the High Court is itself guilty of these allegations directed towards the government. The Court has ignored existing law, for reasons of its own ideological persuasions, and has led the country to a constitutional crisis – one entirely of its own making.
This particular issue is but one of many such problems that Israel's elected government has had to face from the High Court, and the attorney-general. It was probably inevitable that a government of integrity would one day resist the slew of biased High Court decisions made against it in an attempt by the Court to insert itself into the executive's policy-making function –- an action well outside the limit of judicial authority.
There is a long history to the stark polarization between the High Court and Israel's conservative governments. Historically, the courts, legal system, government, and major public servants were composed of elitist- liberal-progressives. It was this way at the time of independence in 1948, and for the first 30 years of Israel's political life thereafter, the progressives were in power. For the last 30 years or so, however, on and off, the conservative Likud party, and allies, have been elected to political leadership and the die-hard institutional voters on the "left" have not stopped trying to frustrate their policies and return to political power.
Even so, the effect of a legal and political confrontation between an elected government and an unelected, activist, judiciary has the potential to result in mass protests against, or for, those two branches of government. Unless this issue is resolved satisfactorily, social turbulence will follow -- which Israel's enemies will -- again -- undoubtedly misunderstand as a sign of the nation's domestic weakness and vulnerability. Those months of massive demonstrations – partially financed by the Biden Administration in the hope of dislodging Israel's duly elected prime minister, Benjamin Netanyahu, in order to replace him with one more pliable -- were what indirectly led to the horrors of October 7, 2023.
Consequently, in the interests of social harmony, Israel's leaders urgently would do well to draft legislation clarifying the role and functions of the judiciary, as well as that of the attorney-general. Perhaps the nation's enemies will then understand that the people of Israel stand together against their enemies as one.
Nils A. Haug is an Attorney, author and columnist. He is member of the International Bar Association, the National Association of Scholars, the Academy of Philosophy and Letters. Among degrees in Law, Philosophy, and English Literature, Dr. Haug holds a M.A.in Jewish Studies (cum laude) and Ph.D. in Apologetical Theology. He is author of 'Politics, Law, and Disorder in the Garden of Eden – the Quest for Identity'; and 'Enemies of the Innocent – Life, Truth, and Meaning in a Dark Age.' His work has been published by First Things Journal, The American Mind, Quadrant, Minding the Campus, Gatestone Institute, National Association of Scholars, Jewish Journal,James Wilson Institute (Anchoring Truths), Jewish News Syndicate, Tribune Juive,Document Danmark, Zwiedzaj Polske,Schlaglicht Israel, The Australian Jurist,and others.
