This week, after eight months of political and societal upheaval, the government and the judiciary will face off in the High Court of Justice, when petitions against the coalition’s first piece of legislation limiting the power of the judiciary will be heard on Tuesday.
In defiance of the government’s publicly stated stance, the High Court will exercise what it says is its right to review an amendment passed to one of Israel’s quasi-constitutional Basic Laws, and will hear petitions arguing that the reasonableness limitation law passed in July weakens the guardrails of Israeli democracy to such an extent that it undermines the democratic character of the country.
Although the High Court has heard petitions against Basic Laws before, it has never heard a case against a law specifically designed to limit the High Court’s own powers, and the powers of the judiciary more broadly, nor has it done so amid such internal political turmoil over the balance of power between the branches of government.
Because of the extremely sensitive nature of the case and the highly explosive impact the court’s ruling may have, the entire bench of 15 High Court justices will hear the petitions, a judicial panel unprecedented in size in Israel’s history.
A ruling will not be issued on Tuesday, however, and may not even be handed down before Supreme Court President Esther Hayut retires on October 16.
The reasonableness law — the only element of the government’s judicial overhaul plan to be passed into law so far — is an amendment to Basic Law: The Judiciary and bans all courts, including the Supreme Court, from deliberating on and ruling against government and ministerial decisions on the basis of the judicial standard of reasonableness.
Prime Minister Benjamin Netanyahu, left, and Justice Minister Yariv Levin in the Knesset plenum during a vote on the coalition’s ‘reasonableness’ bill, July 24, 2023. (Yonatan Sindel/Flash90)
That standard allowed the court to annul government decisions if it believed that not all relevant considerations had been taken into account, that the considerations used to make the decision had not been given the appropriate weight, or that inappropriate considerations had been used when making the decision.
The government argued that the law was necessary to curb an overly activist judiciary which used the reasonableness standard to intervene too often in policy decisions it had to no right to tackle.
And in its filing to the High Court, it asserted squarely that the High Court has no right to review any Basic Laws and their amendments, since they form part of Israel’s proto-constitution which, the government argues, should therefore be off-limits to the court’s power of judicial review.
The petitions against the law, argue, however that the standard provides crucial protection against arbitrary government action against individuals, acts as an obstacle to the dismissal of key law enforcement officials for political purposes, and stops interim governments abusing their control of public resources during election periods.
And they argue that the law is an example of an unconstitutional constitutional amendment; that is, an amendment to the constitution that violates earlier aspects of that constitution, specifically Israel’s democratic character, and must therefore be struck down.
A photo provided by an anti-judicial overhaul activist shows thousands protesting in Tel Aviv with a sign reading ‘The court is supreme,’ September 9, 2023. (Gilad Furst)
The battle lines are now drawn.
Speaker of the Knesset Amir Ohana together with several cabinet ministers have either indicated that the government will not respect any High Court intervention over the reasonableness law, or declined to say that they would when asked.
On the other side of the divide, opposition parties and the protest movement organizations have insisted that the government is legally bound by the High Court’s decision, and any refusal to adhere to its rulings would throw the country into legal and constitutional chaos.
Three ministers — including Defense Minister Yoav Gallant — said Sunday that they believed the government should respect a potential ruling.
The result of a ruling in which the court does intervene would almost certainly be a constitutional crisis in which it is unclear to state institutions and officials which branch of government they should listen to — the executive and the legislature, or the judiciary.
The outcome of such a legal black hole is impossible to predict, but it would certainly amount to the most serious non-military crisis the country has ever experienced.
