As reasonableness law takes effect, High Court sets September showdown for petitions

Court declines to issue injunction freezing law, but will hear arguments against legislation from seven petitioners, as well as demands for Levin to convene judge appointment panel

Anti-overhaul protesters outside the Supreme Court in Jerusalem on July 18, 2023. (Yonatan Sindel/Flash90)
Anti-overhaul protesters outside the Supreme Court in Jerusalem on July 18, 2023. (Yonatan Sindel/Flash90)

The High Court of Justice will hear arguments against the reasonableness law, a petitioner said Wednesday, setting up a fall showdown between the government and the judiciary whose powers it is attempting to void.

The coalition’s controversial law to outlaw judicial review of the “reasonableness” of governmental and ministerial decisions was entered into the state’s official legal registry Wednesday, meaning the law is in effect.

While the court scheduled a September date to hear the petitions, along with petitions demanding Justice Minister Yariv Levin convene the country’s Judicial Selection Committee, it stopped short of issuing an injunction against the law, the Movement for Quality Government in Israel said.

The group and six other petitioners argue that the reasonableness law passed two days ago is an illegal power grab that opens the door to serious abuses of authority, noting that it was rushed through the Knesset without opposition buy-in.

“This amendment represents the opening notes of the closing chapter of democracy in Israel, no less,” the group wrote in its filing. “The court is perhaps the last redoubt standing before the collapse of the democratic regime in the State of Israel.”

The law passed Monday, an amendment to a Basic Law, voids the court’s ability to use a reasonability test to strike down government or ministerial decisions, the first major bill of the government’s judicial overhaul to pass into law. The bill’s advancement and passage sparked a massive wave of protests that culminated Monday night with hours of chaos as demonstrators blocked roads and vowed to continue to fight government efforts to neuter the judiciary.

“We are ready. We will appear at the Supreme Court to defend Israeli democracy and do everything we can to stop the judicial coup,” said Eliad Shraga, who heads the Movement for Quality Government. “We will continue to protest and fight everywhere and on every stage until the threat is removed.”

Demonstrators stand amid the traffic as they block the Ayalon Highway during a protest rally against the government’s judicial overhaul, in Tel Aviv on July 24, 2023. (Jack Guez / AFP)

The September court dates mean the hearings will be held while Supreme Court President Esther Hayut is still on the bench, before her scheduled retirement the next month. Hayut, a regular target of opprobrium from Prime Minister Benjamin Netanyahu’s allies, has been outspoken in defending the judiciary’s independence.

Hayut and other justices rushed back to Israel from a trip to Germany this week in order to hear petitions against the law.

Prime Minister Benjamin Netanyahu (right) with Supreme Court President Justice Esther Hayut at a memorial service marking 22 years since the assassination of Yitzhak Rabin held at Mount Herzl cemetery in Jerusalem, November 1, 2017. (Marc Israel Sellem/POOL)

The petitioners had requested that the court also issue an order freezing the implementation of the law, noting that the government could use the interim to rush through appointments and decisions that would otherwise be struck down. However, the court declined to issue an injunction, without elaborating.

The government has until 10 days before the hearing to issue a response.

The court will also hear petitions in September from the Movement for Quality Government and Opposition Leader Yair Lapid’s Yesh Atid party seeking a court order to compel Levin, a key architect of the overhaul, to convene the Judicial Selections Committee, which appoints judges.

No longer able to lean on the “unreasonableness” of Levin’s boycott, the petitioners argued that Levin lacked authority to refuse to convene the panel and was abusing the powers he had for the personal benefit of Netanyahu, who is on trial for corruption.

A vote on the reasonableness bill at the assembly hall of the Knesset on July 24, 2023. (Yonatan Sindel/Flash90)

Levin has sought greater political control over judicial appointments to rebalance the Supreme Court, in his words, by placing conservative justices on the bench, but legislation giving the government almost total control over the selection of judges was frozen in March, and he has stopped the committee from convening since then, leaving various bench postings throughout the court system unfilled.

There was no immediate response from the government on the court announcements, and it remained unclear who would defend the government’s positions in court. Attorney General Gali Baharav-Miara and other members of her office have spoken out strongly against the law.

On Tuesday, she asked the High Court to strike down a law passed in March that prevents the court from ordering a prime minister to recuse himself from office. The stance – if accepted – would mark the first time the court strikes down one of Israel’s quasi-constitutional Basic Laws, possibly setting a precedent for knocking down the reasonableness amendment.

Hayut is set to be replaced by Justice Isaac Amit as court president in October, according to the current seniority-based system, but Levin and the coalition are seeking to upend this tradition as well, in order to allow them to appoint a president to their liking.

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