Tensions high ahead of judicial reform High Court hearing Tuesday

Activists marched through Tel Aviv's Kaplan Street with a large red banner that proclaimed that “The Supreme Court is Supreme.”

 The main demonstration against the judicial reform at Habima Square in Tel Aviv in the 36th week of protests on September 9, 2023. (photo credit: AVSHALOM SASSONI/MAARIV)
The main demonstration against the judicial reform at Habima Square in Tel Aviv in the 36th week of protests on September 9, 2023.

Anti-judicial reform protests took to the streets on Saturday night for the 36th post-Shabbat demonstration, ahead of Tuesday’s High Court of Justice hearing on petitions against the reasonableness standard law.

Activists marched through Tel Aviv’s Kaplan Street with a large red banner that proclaimed that “The Supreme Court is Supreme.” Organizers claimed that hundreds of thousands of protesters partook in rallies across the country.

The Kaplan Force protest group planned to march to the house of Knesset Speaker Amir Ohana, who on Wednesday night issued a statement warning the High Court that it did not have the authority to strike down the Basic Law amendment on reasonableness. A second march was planned to the home of Negev and Galilee Minister Yitzhak Wasserlauf.

A protester was arrested at Wasserlauf’s home during the day in what police said was an illegal demonstration. Wasserlauf issued a statement saying that he did not call for the police to arrest protesters but stated that they had harassed him on his way to synagogue and disturbed his family.

“I call on the protesters to demonstrate against me but leave the children out of the game,” said Wasserlauf. “I call on the police: The right to demonstrate is sacred, but so is the right of my children and my neighbors to live in peace. I say to the rioters: I will not be deterred by the demonstrations.”

 A protester at a demonstration against the judicial reform on Kaplan Street on September 9, 2023. (credit: AVSHALOM SASSONI/MAARIV)
A protester at a demonstration against the judicial reform on Kaplan Street on September 9, 2023. (credit: AVSHALOM SASSONI/MAARIV)

Kaplan Force said that before the hearing, the police were engaging in dictatorial behavior by arresting protesters.

Marches were held earlier in the day in the North, where a three-day journey came to a close in Tel Hai. Protesters in Beersheba held a closing event on Saturday night for a southern protest march that started just after mid-day.

Leaders from the Bedouin community participated in the rally. Former Hatnua leader Tzipi Livni and former defense minister Moshe Ya’alon were scheduled to speak.

“This is a fateful hour of Israel,” Ya’alon wrote on social media, speaking out against calls for compromise as surrender and collaboration with a “racist dictatorship.”

Physicist and activist leader Shikma Bressler also decried talks between the opposition and coalition at a Nahalal democracy conference on Friday, using even more charged language than Ya’alon.

“It’s forbidden to speak to Nazis, if they are Jewish or not,” said Bressler, later apologizing for the use of the term “Nazi,” which she said had no room in the discourse.

Prime Minister Benjamin Netanyahu condemned Bressler’s statement, describing it as an “insult to the Holocaust, and wild incitement for the murder of government ministers and elected officials.”

Further protests are expected during the week before the High Court hearing on the judicial reform law. The White Coats physicians’ protest group said that it would be assembling before the Supreme Court building on Monday night.

The High Court will hear on Tuesday arguments for eight petitions calling to cancel the only judicial reform legislation to pass muster at the Knesset. For the first time in its history, all 15 justices will preside over the hearing.

The Basic Law: The Judiciary amendment restricted the reasonableness standard, a common law doctrine that allows the court to engage in judicial review of government administrative action deemed far beyond what a reasonable and responsible authority would decide. The July 24 law prevented the standard’s application to government and ministerial decisions.

Much of the controversy around the hearing has centered around the fact that the legislation is a Basic Law amendment. The court has never before struck down an article of Israel’s quasi-constitutional Basic Laws, and it is hotly contested between the coalition and opposition if the court has the power to do so.

The government and Knesset legal adviser Sagit Afik submitted responses to the High Court on Friday. Both filings asserted that the court lacks the authority to engage in judicial review of Basic Laws.

The government position held that the court’s power is not unlimited, and that review of Basic Law amendments violated not only the rule of law and separation of powers, but the sovereignty of the Israeli people.

The Israeli people voted for their representatives in the Knesset, and the Knesset has the undisputed role as the constituent authority to enact Basic Laws. Petitioners were asking the court to expand the court’s authority in a way that would violate democratic principles.

The government also argued that the striking of Basic Laws would debase their status, since they were established as legal articles above which no institution stands.

Afik argued that the petitions were filed against damages that had not yet materialized. It wasn’t possible to gauge the harm that the law would cause, especially since it would apply to the courts who could establish other administrative review tools.

Many of the claims about the law’s impact relate to the removal of the requirement for government officials to act reasonably, to explain motives behind policies – but Afik said that the Knesset did not release the government from this responsibility.

The petitions often argued, as opposition leader Yair Lapid did on Friday in a social media post, that the reasonableness law was not “legislated like a Basic Law, its legislative process was hasty, careless, hysterical, and predatory, the motives behind it are personal and the procedure is completely flawed.”

Afik said that the procedure was not optimal, but there was no flaw in the legislative process, and it was accompanied by real-time legal advice and participation by Knesset members.

The system is flawed

Due to the allegedly flawed procedure, political motives, and content not suitable for constitutional matters, the petitions argued that the Knesset had abused its constituent authority. Afik said that the doctrine of abuse of constituent authority should be reserved for extreme cases, and the law meets all tests in that regard.

The law was based on a background of legal, academic, and public controversy about the reasonableness doctrine, and not on improper political motives. The response to the court also dismissed claims about the unconstitutionality of the content, saying that this should not be applied at the current stage of Israel’s constitutional process, which is still undergoing.

The Movement for Quality Government in Israel, one of the petitioners, said that the Knesset’s response was disappointing but expected.

Protest leaders said on Friday in response to the government’s position that the Supreme Court’s ability to strike down laws came from the virtue that it could protect the basic principles established in the Declaration of Independence.

“The efforts of Netanyahu and his criminal partners to create dangerous and unprecedented chaos in Israel will be met with a determined civil struggle,” said the protest headquarters.