AnalysisCourt to hear petitions in September, but no injunction

A time for reason: Will the High Court strike down government’s reasonableness law?

Justices have developed 2 doctrines to potentially block a Basic Law. Does the new legislation limiting the courts’ use of reasonableness justify resorting to this doomsday weapon?

Jeremy Sharon

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

Israelis protest outside the Supreme Court in Jerusalem against the government's judicial overhaul, March 27, 2023. (Jamal Awad/Flash90)
Israelis protest outside the Supreme Court in Jerusalem against the government's judicial overhaul, March 27, 2023. (Jamal Awad/Flash90)

Despite the eruption of an enormous, impassioned and unprecedented protest movement against the government’s judicial overhaul agenda, and in the teeth of fervid demonstrations this week and for the last seven months, the coalition passed its reasonableness limitation bill into law on Monday.

But now that the law, the first of the radical reform package, has been passed, the fight by opponents of the coalition’s legal agenda is moving to the courts, a development that is itself a primary motivation behind the government’s judicial overhaul program.

Just minutes after the passage of the bill into law, the Movement for Quality Government in Israel, a watchdog organization, filed a petition to the High Court of Justice asking it to strike down the law as unconstitutional.

It was followed by similar petitions by the Darkenu group, the Israel Bar Association, the Democratic Movement, the Ometz Movement, and a group of individuals including former IDF general Labor MK Tal Rousso, among others.

And on Wednesday afternoon, the court announced that it would hold a hearing in September on seven of the petitions filed against the law. At the same time, it did not issue an injunction against the law, which formally took effect earlier in the day.

So what is the likelihood that the High Court will strike down the highly controversial law, and on what basis could it do so?

What does the law say?

First, it is important to understand what the reasonableness law does, and the format in which it was passed.

The legislation was passed as an amendment to Basic Law: The Judiciary. In its single operative clause, a mere five lines of text, the law bans all courts, including the Supreme Court, from deliberating on and ruling against government and ministerial decisions, including appointments of officials, on the basis of the judicial standard of reasonableness.

The Supreme Court has used the “reasonableness” tool of administrative law on multiple occasions to reverse government decisions where it ruled that civil rights had been violated.

Opponents of the law argue it will weaken the court’s ability to protect such rights, and will critically hinder its ability to protect senior civil servants who hold sensitive positions, such as the attorney general, police commissioner and state attorney, from dismissal on improper grounds, thereby politicizing those roles.

The coalition argues, however, that banning the use of the doctrine is necessary to halt judicial interference in government policy, maintaining that it amounts to unelected judges substituting their own judgment for that of elected officials. They further say that it has been used too frequently by the court, thereby subverting the will of the electorate and undermining the principle of majority rule.

Reviewing Israel’s proto-constitution

That the law was passed as an amendment to one of Israel’s quasi-constitutional Basic Laws greatly complicates the ability of the High Court to strike it down.

Although the Declaration of Independence of 1948 called for the adoption of a constitution within five months of the establishment of the state, opposition to a written constitution led to the Harari compromise of 1950.

That decision set in motion the process of legislating a constitution piecemeal, as a set of Basic Laws in the Knesset’s capacity as a constituent assembly. The first such law to be passed was Basic Law: The Knesset in 1958, and there are currently 13 Basic Laws on the books.

Basic Laws must be passed through the Knesset Constitution, Law and Justice Committee, set up by the Harari compromise for that purpose. Even though there is no difference procedurally between how a Basic Law and a regular law is passed, when the Knesset passes a Basic Law it is considered to have done so through its authority as a constituent assembly and therefore the law has quasi-constitutional weight.

As such, the High Court has been extremely reluctant to strike down Basic Laws; indeed, it has yet to take such a dramatic step.

But the court has developed two doctrines that could be used to invalidate such legislation.

The first is known as the misuse of constituent authority, which could be invoked in cases where the Knesset deems a new Basic Law, or an amendment to an existing one, to have been passed for narrow, short-term goals.

In May 2021, the High Court ruled that an amendment to Basic Law: Knesset — passed the previous year in order to give the troubled Likud-Blue and White coalition more time to sort out its political differences before the Knesset was automatically dissolved — had been an improper use of parliamentary power, but nevertheless declined to strike down the law.

The second doctrine is that of the unconstitutional constitutional amendment, which violates other Basic Laws or is deemed to violate the very essence of the state as Jewish and democratic, as laid out in the Declaration of Independence.

A composite image, from left, of Justice Minister Yariv Levin at a government conference at the Prime Minister’s office in Jerusalem on January 15, 2023; Supreme Court Chief Justice Esther Hayut at a hearing in Jerusalem on December 1, 2022; and Prime Minister Benjamin Netanyahu at the Prime Minister’s office in Jerusalem on January 29, 2023. (Yonatan Sindel/Flash90)

Supreme Court President Esther Hayut wrote in 2021, in her opinion on petitions against Basic Law: Nation State, that there was only one situation in which the court could strike down a Basic Law:

“At this stage of Israel’s constitutional endeavor, there is one restriction, exceedingly narrow, which is incumbent on the Knesset in its function as the constituent authority and that is it is unable to revoke through a Basic Law Israel’s essence as a Jewish and democratic state,” wrote Hayut.

What do the petitions argue?

The petitions filed against the bill all structure their arguments around these two doctrines, in an effort to convince the High Court that the reasonableness limitation law should be struck down on the basis of at least one, if not both.

The Movement for Quality Government’s petition argues that the new law “substantively changes the basic structure of Israel’s parliamentary democracy” and does “mortal damage to the delicate tapestry of the separation of powers and the framework of checks and balances” on government power.

The organization also contends that the law gives the executive branch of government “unlimited power,” which constitutes a misuse of constituent authority, and that the legislative process suffered from severe deficiencies.

Tal Russo (center with gray hair) attends a protest by reserve soldiers, veterans and activists outside the Supreme Court in Jerusalem, against the government’s judicial overhaul, on February 10, 2023. (Yonatan Sindel/Flash90)

The bill filed by Russo and another 40-odd former security forces officials, social activists and businessmen also argues that the law is a misuse of constituent authority, maintaining that it “deprives the court of a critical tool in preventing arbitrary, unprofessional and unbalanced decisions,” as well as those based on “inappropriate and political considerations.”

And the Israel Bar Association petition similarly argues that the law “threatens to grant the executive branch power that is not subject to judicial review, and allow it to rule without restraint or limitation.” It turns ministers from “public servants” into “rulers over the public — elevated above the people and exempt from the yoke of the law,” the association claims.

Would the court dare strike it down?

Prof. Suzie Navot, a scholar of constitutional law and a vice president at the liberal Israel Democracy Institute, believes the reasonableness law does indeed undermine democratic norms and remove a key check on government power, and therefore could be subject to Hayut’s doctrine of striking down a Basic Law that changes Israel’s democratic character.

The new law “abolishes the principle of the rule of law and it gives the government absolute power to make any decision it wants without oversight,” said Navot.

Vice president of the Israel Democracy Institute Prof. Suzie Navot at the IDI, December 2022. (Michal Fattal/IDI)

“In democracies, there is no absolute power for the executive or the legislative branch. This is an anti-democratic idea and very seriously harms the basic values of the State of Israel.”

Dr. Shaul Sharf, a lecturer in constitutional law at the Peres Academic Center in Rehovot, insisted, however, that there was no legal justification to invalidate the law.

He argued that the High Court has used the reasonableness standard to unduly interfere with government policy, and that the government has rightly limited the court’s use of the doctrine while preserving other judicial tools for the court to review decisions that might impact civil rights.

“The legislation doesn’t do any damage to civil rights or to democracy. Anyone who can see straight sees that this is not the case, since the court has many other tools in administrative law to uphold such rights,” he said, pointing, for instance, to the proportionality doctrine, which can and has been used to reverse decisions impinging on civil rights.

That being the case, there should be no basis for the High Court to rule that the reasonableness limitation law undermines Israeli democracy to such an extent that it changes the nation’s democratic character and justifies the court striking down a Basic Law, argued Sharf.

Dr. Shaul Sharf (Courtesy)

And he contended that the doctrine of misuse of constituent authority should also be inapplicable to the reasonableness law.

“[Unjustifiably] extending the term of the Knesset beyond four years would be a misuse of constituent authority, something that strikes at the heart of democracy. This [law, by contrast,] is such a small and negligible reform it wouldn’t justify using this tool,” said Sharf.

Prof. Adam Shinar, an expert in constitutional law at Reichman University, concurs with Sharf that it would be extremely difficult to demonstrate to the court that the reasonableness bill does such egregious damage to Israel’s democratic nature and abuses the Knesset’s authority to such a great extent as to justify striking down a Basic Law.

Shinar is an ardent opponent of the legislation, and has argued that it will substantively reduce the court’s ability to protect civil rights, including the value of equality which is not explicitly guaranteed in any Israeli law.

And he has also spoken out against the government’s broader judicial overhaul agenda, arguing that it would essentially end Israeli democracy by undermining all constitutional rights.

But he is skeptical that the court would intervene over the reasonableness law alone.

“I think the chances are the court will not strike down this law,” said Shinar, who has addressed the Knesset Constitution Committee during its deliberations on the coalition’s judicial overhaul legislation.

“To say that by doing away with the reasonableness standard Israel is not a democracy anymore is a bit of a stretch,” continued the professor.

And he said the argument that the law is a misuse of constituent authority is “even more far-fetched” since the petitioners would have to prove that the nature of the law is incommensurate with the purpose of Basic Laws.

Basic Laws need to be generally applicable and stable arrangements, Shinar noted, and said it was difficult to see how the reasonableness law could be portrayed as contravening those standards.

Shinar suggested that the court might avoid the issue altogether for the time being, perhaps out of a concern not to further involve the court in the doomsday politics currently gripping the country.

The court could decide that it is not the right time to rule on the law since it is far too soon to have an evidentiary basis for the alleged harm it will do to Israeli democracy.

Coalition lawmakers crowd around Justice Minister Yariv Levin to take a celebratory selfie in the Knesset plenum, as they pass the first of the coalition’s judicial overhaul laws, July 24, 2023. (Yonatan Sindel/Flash90)

The High Court could also tell the petitioners that they have not exhausted all possible avenues to redress the impact of the law before approaching the court, such as seeking the opinion of the attorney general as to how the law might be interpreted.

And Shinar was critical of the rush to file the petitions, saying that in so doing the petitioning organizations could prevent the court from developing alternative doctrines which might in part redress the balance done by the severe limitation to the use of reasonableness.

And he said that if the government passes other aspects of its judicial overhaul legislation agenda, as senior ministers have said they intend to do, it would make it more likely that the court strikes down the package of laws as opposed to each law separately.

Intervention by the court striking down the reasonableness law would generate a furious backlash from the government and its supporters, and plunge Israel into a constitutional crisis it has never experienced and one that would deepen even further the political cataclysm unfolding at present.

This is something that the court and its justices are surely aware of. Although they feel themselves bound by what they see as their fealty to the law and to the character of the State of Israel as a Jewish and democratic state, it is unclear, and perhaps even unlikely, that they will deem the government’s reasonableness law as so injurious to that character as to justify the consequences of such a decision.

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