There are times in the life of a nation that we will forever remember as turning points. One of these was the 1973 Yom Kippur War.
This September as we mark 50 years since that war, we will find ourselves facing a perhaps equally critical turning point. This battle will be waged not in the deserts of the Sinai Peninsula or on the volcanic terrain of the Golan Heights, but in the Supreme Court, sitting as the High Court of Justice.
Just a month before she retires, Supreme Court President Esther Hayut will conduct the battle of her life, and the decision she presides over will shape the life of the entire nation.
In the High Court, a battle with Israel's future on the line will be fought
The announcement of the government’s narrowing of the Reasonableness Standard was received by Hayut in Germany, where she was visiting along with a group of Supreme Court justices. They cut short the visit and returned to Israel.
The judges understood that as important as the visit to Germany might be, they could not remain abroad while Israel is on fire. Petitions to repeal the amendment that annulled the Reasonableness Standard – a law passed by a large majority in the Knesset – were quickly stacking up. A week later, the decision was made. Hayut announced that the petitions would be heard on September 12 – for the first time by an extended lineup of 15 judges.
The Reasonableness Standard is not the only issue facing the Supreme Court – the court’s judges face a heavy workload. They will also address petitions filed against the government’s failure to convene the Judicial Selection Committee, and appeals against an amendment to Basic Law: The Government which limits the ability of the Knesset to declare a prime minister “incapacitated” and which the petitioners claim was designed to personally serve Prime Minister Benjamin Netanyahu. The amendment prevents Netanyahu – currently on criminal trial in three disparate cases – from being declared incapacitated if he is found to have breached a conflict of interest agreement by engaging with the judicial reform program.
In other words, the difficult crisis facing the State of Israel is coming to the Supreme Court, and the decisions that will be made may decide the fate of Israeli democracy.
It is difficult to bet on how the court will rule. Until now, the Supreme Court has never stricken a Knesset Basic Law. However, previous Supreme Court rulings that dealt with the constitutional status of the Basic Laws (such as the Supreme Court discussion in the context of the Nation-State Law), and discussions on whether such laws are immune to judicial review, can provide some indications.
These suggest that the decision will be made in line with the degree of constitutional legality that the judges will assign to the amendment that annulled the Reasonableness Standard. Other factors include the judges’ views of the extent of the alleged misuse of the Knesset’s authority and purpose and their assessment of the degree of harm caused by the amendment. The Supreme Court will also assess its authority to disqualify the amendment.
These major questions surface against the background of signals by coalition members, the prime minister, and his ministers regarding the possibility that they will not respect the Supreme Court’s ruling. Such calls make it clear to the panel of judges, liberals and conservatives alike, that their decision will be a turning point in the life of the State of Israel. The situation post-September will be very different from what came before. This forms a decisive test for the question of checks and balances – and the identity of the driver holding the steering wheel.
Hints of Hayut’s worldview can be found in the dramatic speech she made after Justice Minister Yariv Levin introduced his comprehensive judicial reform. Addressing the Reasonableness Standard, she stated, among other things: “If there is no room for a judge’s value decision regarding the reasonableness of a government decision, the next step – according to the same logic – may be that the judge also has no professional advantage in determining what forms reasonable doubt for the acquittal of a criminal defendant.”
In other words, if a judge cannot exercise judicial review of government, administrative, and constitutional decisions, we can shut down the court entirely.
“From here, the road is short to the deletion of extensive chapters in the various Israeli legal sectors, all of which are subject to value standards that the judge must examine and decide upon,” Hayut warned.
Those who support the annulment of the Reasonableness Standard and denying the Supreme Court authority to review the laws laid down by the Knesset, and those who demand that Hayut does not sit on the panel, are in fact expressing what opponents of the judicial overhaul fear – a state that will not allow substantive judicial review is a state on the threshold of dictatorship.
Appointing judges on behalf of the delusional reform laws (225 laws in total – for those interested) will turn us into a fully-fledged dictatorship.
How will Israeli society emerge post-September?
This is a question that should concern every one of us. Unlike September 1973, the battle to hold the line this time will be waged by the Supreme Court and the many citizens who come out week after week to protest for the future of the country.
Any government that wants to act on behalf of its citizens should not fear a Reasonableness Standard, and that which may seem reasonable today could develop into something deeply unreasonable tomorrow. When that happens, there might not be anyone around to stop it.
The writer is a publishing expert at The MirYam Institute. She served as an MK in the 24th Knesset, as well as the deputy head of the Kiryat Tivon Regional Council. She is a senior lecturer in academia and a journalist.