A historic High Court of Justice hearing was held on Tuesday, with all 15 justices presiding together for the first time to hear arguments to strike down the judicial reform’s reasonableness standard law.
The over 12-hour hearing on the eight petitions is the culmination of a year of political and legal turmoil for Israel, in which the first and so far only judicial reform legislation to pass into law will be challenged.
The July 24 reasonableness standard law restricts a common law doctrine that allowed the court to engage in judicial review of government administrative decisions deemed far beyond what a reasonable and responsible authority would undertake. Under the law, the court can not review the administrative decisions or inaction of the government, ministers, and prime minister, but the standard still applies to civil servants.
The legislation was an amendment to Israel’s quasi-constitutional Basic Laws. The court has never before struck down a Basic Law. Much of the deliberation was not devoted to the content of the law, but the authority of the court to strike down Basic Laws.
Can the High Court strike down a basic law? The debate over the reasonableness standard law
Constitution, Law, and Justice Committee head Religious Zionist Party MK Simcha Rothman argued that every time the law interfered in the legislation and decisions of the Knesset it crossed into the auspices of governance and expanded its own power.
The court, he said, was overruling the democratic will of the people to choose their elected officials. Rothman said that if the court had respected the separation of powers and legal and academic opinions over the years, there would have been no need for this Basic Law amendment.
Rothman said the Knesset had the authority to pass any Basic Law by merit of it being representative of the will of the people.
Ilan Bombach, the attorney representing the government, Prime Minister Benjamin Netanyahu, and the justice minister, argued a similar point as Rothman, saying it was not the court’s role to check the Knesset, but that of the citizenry. The justices challenged Rothman and Bombach, asking what prevented the parliament from passing undemocratic laws, such as those limiting the voting power of the people. The court warned that undemocratic movement may not be immediately recognized.
Justice Yitzhak Amit said that democracy doesn’t usually die all at once, “democracy dies in small steps.”
The respondents argued that the court didn’t have the authority to strike down Basic Laws because it overrode the will of the people.
The court asked Bombach from where the source of the Knesset’s constituent authority was derived. Bombach said that the Harari compromise sanctioned the Knesset to establish constitutional articles in incremental chapters.
“It can’t be said that the signatories to the Declaration of Independence gave you the authority for judicial review,” said Bombach.
The government respects the Declaration of Independence, said Bombach, but ultimately the Knesset’s authority to introduce Basic Laws comes not from the declaration, but from the will of the people. The signatories were not representative of the populace, so they had no authority to establish something that would be a constitution. The court’s own authority came from the constituent authority’s Basic Laws, which it shouldn’t be able to review.
Knesset Legal Adviser Yitzhak Beret said that the declaration served to found the country, but did not serve as a constitutional document.
Bombach compared the use of judicial review against Basic Laws to a nuclear weapon and cautioned its use.
“We aren’t talking about an extreme situation” that warranted its use, said Bombach.
Bombach complained that the focus of the deliberations had become on the status of Basic Laws, which should have been given its own hearing.
Attorney-General Office’s representative Aner Helman argued there were limits to the Knesset’s authority to pass quasi-constitutional Basic Laws. It was a given in the system that laws could not be passed that violated the state’s status as a democratic and Jewish country.
There needed to be checks on the government’s ability to pass any Basic Law it pleased and to ensure it didn’t abuse its authority.
The lack of clarity on the boundaries of Basic Laws came from the Knesset’s failure to pass Basic Law: Legislation to establish the rules for the articles.
The gap of Basic Law: Legislation was filled by Basic Law: The Judiciary, which vested the Supreme Court with the powers of a High Court to rule on state actions and constitutionality.
Sohlberg challenged whether the need in the field created authority. Supreme Court President Esther Hayut pushed Helman to demonstrate the extreme nature of the law, saying that it was not every day that a Basic Law was struck down.
Helman said that there would be a dramatic impact if the law wasn’t canceled, since it would impact rule of law. The government could replace gatekeepers and civil servants without providing a reason. These political appointees could persecute political opponents by denying them services like licenses. Replacing officials before elections wouldn’t be challenged, threatening the security of the elections.
Helman rejected the idea that the reasonableness law could be read down through interpretation, saying his office had examined the legislation and determined that it would require interpretation to the point of rewriting.
Interpretation to reduce the law is always preferable to the striking of a Basic Law, said Beret.
Dr. Eliad Shraga, head of the Movement for Quality Government in Israel, presented the legislation as part of a broader agenda of the government, including the judicial reform, to ruin the democratic system of Israel.
Justice Noam Sohlberg asked for specific examples of how the laws disrupted Israel’s democratic system. Court President Esther Hayut said that they were reviewing a specific law.
“You can’t ignore the broader picture,” said Shraga. “The story is that they want to ruin the judicial system.
The Knesset abused its constituent authority by passing the reasonableness standard law to prevent the convening of the Judicial Selection Committee, attorney Chagi Kalai argued.
Kalai, representing a petition put forward by 44 people, told the court that the law was unsuitable as a quasi-constitutional Basic Law because of this immediate political purpose.
A hearing on the Judicial Selection Committee is scheduled for September 19 for petitions demanding that the government assemble the panel and begin appointing justices. Justice Minister Yariv Levin has refused to convene the committee until it has been reformed. The matter is an administrative decision, which would have made applications of the reasonableness standard applicable prior to the passing of the law restricting it on July 24.
Beret defended the process of the legislation, saying that there were several Constitution, Law, and Justice Committee hearings in which thousands of reservations were submitted, dozens of experts opined, and all the Knesset members knew what they were voting for.
“MKs had the full opportunity to have their opinions heard in the committee,” said Beret.
Hayut challenged Beret, saying that the process for all prior 26 Basic Laws was different than the reasonableness law.
Beret said that the subject matter of the law was suitable for a Basic Law since it was about the separation of powers and roles of each branch of government.
There is a difference between the requirement for officials to act reasonably, and the judicial ability of reasonableness, said Beret. The law also didn’t cancel all reviews of judicial review or administrative review, noting that there could be other tools used like arbitrariness.
Regarding the alleged unconstitutionality of the law, Beret said that the law passes the test established in the court’s review of the Nation-State Law. The test holds that an unconstitutional law impacts the Jewish and democratic values of the state and, in an extreme situation, alters the state so that it isn’t democratic. The restriction of reasonableness doesn’t impact democratic institutions like elections.
“Rule of law is not essential for a democratic state?” Justice Ofer Grosskopf asked.
In response to being cited on the need to restrict the use of reasonableness, Sohlberg said that he hadn’t recommended a Basic Law but a judicial ruling to implement such a change. Hayut challenged Bombach if the government was operating based on his opinion, and why it pursued a Basic Law amendment as a solution for such an important tool for ensuring the rights of citizens.
Bombach said the justices had failed after so many years in accordance with Sohlberg’s recommendations. The government lacked faith in the court’s willingness to limit its own power. This necessitated the legislation.
The justices asked why such an extreme text was the answer. Bombach disputed that the law’s content was extreme, noting that when Levin announced the judicial reform in January it called for the complete neutralization of the reasonableness standard.
Amit said that Bombach’s argument could be summarized as being “terrible, but it could have been more terrible.”
The hearing was heated, and at times spiked into harsh jabs. Rothman referred to them as “privileged elites” that are concerned with preserving their own status. Hayut shot back that they were not concerned about their own status, but the interest of the public.