ISRAEL AT WAR - DAY 141

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Acting High Court chief orders probe into leak of landmark ‘reasonableness’ ruling

Three-member investigative team to include former head of court administration and two former heads of Shin Bet investigations; all justices back development

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

Supreme Court Justice Uzi Vogelman at the Supreme Court in Jerusalem on December 31, 2023. (Chaim Goldberg/Flash90)
Supreme Court Justice Uzi Vogelman at the Supreme Court in Jerusalem on December 31, 2023. (Chaim Goldberg/Flash90)

The Supreme Court will probe how a draft of a landmark ruling on a government effort to limit judicial powers leaked to the media, acting court President Uzi Vogelman said on Monday.

In an unprecedented leak in late December, parts of a highly charged High Court ruling on petitions to strike down a bill kneecapping the judiciary’s ability to use “reasonableness” as a standard for second-guessing government moves were published by Channel 12 News, leading to accusations that the leak was politically motivated.

In a letter announcing the inquest, Vogelman called the leak “a serious incident.”

The investigative team examining the incident will be made up of Judge Michael Spitzer, the recently retired director of the Israel Courts Administration; former head of investigations in the Shin Bet Haggai Avimor; and another former head of investigations in the Shin Bet, Eyal Dagan.

The three-member investigative team will examine “physical and technological work procedures” in the court; how the draft was leaked; how it might be possible to limit the number of court employees who have access to such documents; and how oversight can be increased to protect such documents, according to Vogelman.

“Everything possible should be done in order to clarify the matters as soon as possible in order to draw lessons for the future,” he wrote.

The investigative team will interview Supreme Court justices and employees, among others, and should the investigation raise concerns of any violation of the law or disciplinary procedures, the matter will be passed to the relevant authorities, Vogelman told the team members.

He added that all justices on the court have supported the establishment of the internal investigation. The team was requested to file an interim report by May 1.

On January 1, the High Court of Justice struck down the government’s reasonableness limitation law, annulling for the first time in the country’s history one of its quasi-constitutional Basic Laws.

The court split almost down the middle over the highly contentious legislation, the only law from the government’s polarizing judicial overhaul package to have been passed, with eight justices ruling to strike down the law and seven to uphold it.

But just days earlier, Channel 12 published a draft of the decision that contained the stance of each justice.

The report drew immediate, heated reactions, with coalition members chastising the expected decision and casting it as undermining the national unity being displayed during the ongoing war against Hamas. The group that petitioned for the law to be nullified claimed the leak was an attempt to intimidate the justices and push them to change their ruling and not void the legislation.

An amendment to Basic Law: The Judiciary passed in July, the reasonableness law bars all courts, including the High Court, from deliberating on or ruling against government and ministerial decisions on the basis of the judicial standard of “reasonableness.”

That doctrine allows the High Court to annul government and ministerial decisions if it believes there have been substantive problems with the considerations used in such decisions, or with the weight given to those considerations.

The court ruling marked the culmination of a year-long battle between the government and the judiciary over the nature of Israel’s democracy, and the question of which branch of government has the ultimate say over its constitutional character.

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