ISRAEL AT WAR - DAY 144

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Justice Amit: 'Democracy dies in a series of small steps'

At historic 13-hour hearing, judges challenge assertion they can’t reject Basic Laws

Justices question claims of supreme Knesset authority, but also indicate reasonableness law won’t be voided unless it deals ‘mortal blow’ to democracy; petitioners insist it does

Illustrative: All 15 High Court justices preside over a court hearing on petitions against the government's 'reasonableness law' at the Supreme Court in Jerusalem, September 12, 2023. (Yonatan Sindel/Flash90)
Illustrative: All 15 High Court justices preside over a court hearing on petitions against the government's 'reasonableness law' at the Supreme Court in Jerusalem, September 12, 2023. (Yonatan Sindel/Flash90)

The High Court held a historic and marathon hearing Tuesday on petitions against a law curtailing judiciary oversight, with several justices challenging the government’s assertion that the top court does not have the authority to strike down quasi-constitutional Basic Laws such as the one in question.

During fraught exchanges between the court and the attorneys defending the so-called “reasonableness” legislation, one justice indicated that Israel’s democracy could be at stake, noting that “democracy dies in a series of small steps,” while the coalition’s lawyer rejected Israel’s foundational Declaration of Independence as an ostensible source of judicial authority, calling it a “hasty” document endorsed by unelected signatories.

But justices also pushed back against demands the “reasonableness” measure be annulled out of hand, with court President Esther Hayut saying that only a “mortal blow” to democracy could justify the radical step of voiding a Basic Law, as lawyers representing petitioners against the law argued that the legislation — and other government proposals to overhaul the judiciary — were indeed a “deadly… strike against the court’s independence and the separation of powers.”

An unprecedented panel of all 15 justices presided over the highly charged session in response to petitions against the law, enacted in July, which restricts judicial review of government decisions using the rubric of reasonableness. While no decision is expected for weeks or possibly months, the bench’s reactions and questions, many of which cut to the heart of the state’s foundational tenets, were being closely watched for signs of what direction the court might take and whether a feared constitutional crisis may be in the offing. (The court must rule by mid-January, three months after Hayut formally steps down from the court at the age of 70.)

The hearing also came as Prime Minister Benjamin Netanyahu entertains a compromise with the opposition on the judicial overhaul, which could lead to a softening of the existing legislation. Opposition leaders are highly distrustful of the prime minister’s intentions, however, and many of them have warned it is a ruse intended to mollify the court and Western observers without actual plans to follow through.

Throughout the session, which ended at 10:30 p.m. after more than 13 hours, both sides emphasized the unprecedented nature of the proceedings; the court has never struck down a quasi-constitutional Basic Law, nor does it have the power to do so, government attorneys argued, while lawyers for the petitioners suggested that the legislation itself undermined Israel’s very character as a democracy, something no Basic Law has ever done.

“We’d prefer to believe it’s not so bad, but democracies can die,” warned attorney Nadav Weissman, representing the Bar Association, one of several petitioners. “Maybe slowly, but they die. The day a government says ‘We are preventing a citizen from going to the court to enforce the law,’ that’s where it starts.”

Israelis rally in support of plans by Prime Minister Benjamin Netanyahu’s government to overhaul the judicial system and against the Supreme Court as it hears appeals to the first part of the overhaul legislation, in Jerusalem Tuesday, September 12, 2023. (AP/Ohad Zwigenberg)

Ilan Bombach, the attorney who is representing the government in the High Court since Attorney General Gali Baharav-Miara has refused to do so, argued that the justices are merely empowered to interpret the legislator’s words and that there is no legal or constitutional basis for them to review Basic Laws.

“I was sure this would never happen, the possibility that the honored court would for the first time ever intervene in a Basic Law, without a shred of authority,” he said.

The hearing was essentially a clash over Israel’s proto-constitution, with the petitioners claiming that the new law barring the judiciary from reviewing government and ministerial decisions on the grounds of their “reasonableness” violates the country’s democratic underpinnings, while the government argues that Israel’s constitutional arrangement bars the court from intervening in the legislation itself.

With lawyers, politicians and justices in an existential tug-of-war over their respective powers, it remained unclear if Netanyahu’s right-wing coalition would honor a hypothetical court decision to strike down the law, amid a wider government effort to shackle the court, long seen by the hard right as a bastion of leftism (though it currently includes multiple judges seen as conservative).

Failure to honor a court ruling would precipitate an unprecedented constitutional clash, likely intensifying deep societal divisions exposed by the judicial overhaul and months of massive street protests.

“Reasonableness isn’t the story here. [The government] wants to crush the judiciary, that’s the story, that’s what the war is about,” said Eliad Shraga, an attorney for the Movement of Quality Government in Israel, one of the petitioners. “They want to chuck out the attorney general, bring back [Shas chief Aryeh] Deri to the cabinet, and not convene the Judicial Selection Committee.”

Deri’s appointment as minister was voided by the court earlier this year, to the outrage of the Shas chief and other coalition leaders. Justice Minister Yariv Levin has refused to convene the selection committee until his plans to change its makeup to allow greater governmental control are brought to fruition.

Religious Zionism MK Simcha Rothman, who spearheaded the legislation of the reasonableness law, told justices they had no right to intervene in the law.

In a tense exchange during which several justices told him he was making political declarations rather than legal arguments, the chairman of the Knesset Constitution, Law and Justice Committee admonished the court. “Throughout history, those counting on oligarchic elites to preserve their rights have found they mostly preserve their own rights,” Rothman said, causing evident anger on the bench.

To Rothman’s assertion that the justices could not fairly rule on a matter that directly relates to “your prestige, your status and your authorities,” Court President Hayut responded sharply: “We are not concerned with our prestige but with the vital interests of the public.”

MK Simcha Rothman arrives at a hearing on petitions against the government’s ‘reasonableness’ law, at the Supreme Court in Jerusalem, September 12, 2023. (Yonatan Sindel/Flash90)

Justices repeatedly pushed back against the assertion that they lacked the authority to intervene. Justice Anat Baron asked if a Basic Law could be passed, for instance, to restrict elections to just once every 10 years, or to ban Arabs from voting.

“Who will determine if that is extremist or not?” she asked.

But they also nodded to the gravity of the single-day hearing and the hurdles that needed to be overcome should they decide to strike the law down.

“We can’t nullify Basic Laws every other day. There needs to be a mortal blow to the basic tenets of the state as a democratic state,” Hayut acknowledged.

Foundational fight

Bombach’s arguments produced some of the hearing’s most dramatic moments, as several justices enumerated the view that the Knesset’s authority to legislate derives from the 1948 Declaration of Independence, which defines Israel as a Jewish and democratic state. Arguing that the Knesset cannot legislate laws — even Basic Laws — that erode Israel’s Jewish or democratic character, they indicated that the court thus had the authority to police those guardrails.

Attorney Ilan Bombach arrives at a court hearing on petitions against the government’s reasonableness law, at the Supreme Court in Jerusalem, September 12, 2023. (Yonatan Sindel/Flash90)

Bombach replied that the signatories of the foundational document were unelected, and that it was “unthinkable” to say the declaration must “bind all future generations.”

“Because 37 people were authorized to sign the hasty Declaration of Independence, which was still being drafted until the last moment, this should obligate people who came later?” Bombach responded.

The comments garnered wide rebuke from the bench and beyond for appearing to downplay the significance of the Declaration of Independence, with the opposition Yesh Atid party seizing on the moment to charge that “there is no clearer proof that there is an anti-Zionist, anti-Israeli, anti-democratic government in Israel that will burn the pages of history and tarnish the founders of the state, all for despicable political considerations.”

But later, Justice David Mintz, considered among the bench’s most conservative judges, also questioned the idea of the Declaration of Independence as a statutory document.

“By referring to the Declaration of Independence you are creating something out of nothing, there is no implied authority [from the Declaration of Independence],” Mintz told Aner Helman, who was representing the attorney general. Mintz has previously written that the court has no authority to strike down Basic Laws.

(Toward the end of the hearing late Tuesday, Bombach assured the court that the government was not about to start working changes into the Declaration of Independence. “But that doesn’t turn it into a legal text. It’s unthinkable to take a document on sovereignty and use it to negate future sovereignty,” he said.)

Bombach tried several times to switch the discussion to the reasonableness law itself, calling the question of the Knesset’s source of power a “theoretical, academic” discussion, but the justices pressed him on the matter, pointing out that the government’s argument began by stressing the High Court’s lack of authority to intervene in Basic Laws.

Bombach maintained that the reasonableness law does not erode Israel’s democratic character, as the petitioners claim, to which Justice Isaac Amit replied that historically, “democracy dies in a series of small steps,” pointing to the series of other judicial overhaul laws that have been declared or have started their legislative process.

Likud MK Tally Gotliv, one of several lawmakers in attendance, interrupted from the backbenches, shouting that “the Knesset sanctifies democracy and preserves it!” She was swiftly admonished by Hayut.

Later in the hearing, Amit told Bombach that he wasn’t really buying what the government is doing. “The feeling I get is as if I heard ‘we know the law is bad, and now we’ll suggest a few tricks, call it what you want and we can use outside considerations [normally deemed unreasonable],” he said. “Why all the run-around?”

In a statement sent out in the evening, while the court was still in session, Likud warned that the court would “undermine democracy” if it invalidated the law.

“If the court can cancel Basic Laws, it makes itself sovereign instead of the people. This extreme step will undermine the foundation of democracy. This is a red line that must not be crossed,” Netanyahu’s party said.

Fateful hearing

Tuesday’s hearing was one of the most consequential in the country’s history, with the High Court of Justice weighing in on petitions from a range of civil society organizations to strike down the government’s “reasonableness” law, an amendment to Basic Law: The Judiciary, and the first and only major part of the coalition’s judicial overhaul agenda to be legislated thus far.

Shortly before the hearing began, Justice Minister Levin, architect of the government’s judicial overhaul package, claimed the court “lacks all authority” to review the law. Doing so served “a fatal blow to democracy and the status of the Knesset,” he said, insisting that lawmakers elected by the people should have the final say over such legislation.

High Court Chief Justice Esther Hayut (center) and justices Isaac Amit (right) and Uzi Vogelman at a court hearing on petitions against the government’s reasonableness law at the Supreme Court in Jerusalem, September 12, 2023. (Yonatan Sindel/Flash90)

The government and its legal representatives were the first to plead before the 15-justice panel, and argued both that the court is subject to the Basic Laws and therefore cannot overturn them, and that the law does not harm Israeli democracy.

“What is the justification to take away the basic characteristic of the State of Israel as a democratic state, its free elections, the ability of the public to express its opinion, the ability of the public to change the laws that run their lives, the ability of the public to determine how the government is run?” Rothman demanded.

“If we make a mistake, we can correct it when we are made aware of it, and if we don’t — we can be replaced via the ballot box,” he added.

But Helman, the attorney general’s representative, warned against trusting the lawmakers.

“If there is one thing that should frighten all of us, it’s when they come and tell us ‘Trust us, we won’t harm the Basic Laws,’” Helman said. “That means we all need to be very, very wary.”

Knesset lawyer Yitzhak Bart argued that parliament “didn’t want to exempt the government from the obligation to act with reasonableness; it could have done that through a regular law, but instead it reduced the court’s use of the judicial standard — while not eradicating the obligation to act with reasonableness.”

Attorney Yitzhak Bart arrives at a High Court hearing on petitions against the ‘reasonableness’ law, at the Supreme Court in Jerusalem, September 12, 2023. (Yonatan Sindel/Flash90)

Multiple justices questioned Bart over how this reconciles with eliminating the justice system’s ability to enforce the standard.

“Who ensures that [ministers] in fact act with reasonableness? You agree that there is a legal obligation, but say that there can be no judge [to enforce it],” Hayut said.

She suggested that the newly passed law also goes against a global trend toward expanding judicial review.

“Here, we are moving toward a trend of canceling [it],” Hayut said, giving England and Australia as examples of countries that have increasingly used the reasonableness doctrine.

The justices also appeared to criticize the rushed passage of the law, something opposition figures have long decried.

In response, Bart acknowledged to the court that the legislative process was hurried and had some flaws, but argued that such flaws are nowhere near the threshold that justifies nullifying the law.

“It would have been appropriate for the discussions to go on longer; it would have been appropriate to give an expression to some of the [opposition] remarks at the committee,” Bart admitted.

Supreme Court President Esther Hayut and other justices at a High Court hearing on the ‘reasonableness law’ at the Supreme Court in Jerusalem, September 12, 2023. (Yonatan Sindel/Flash90)

Bart also argued that rather than strike down the law, the High Court could use its ability to interpret laws to remedy the vacuum in judicial review over government decisions caused by the legislation. For example, he said, judges could rule that the law does not apply to interim governments, because such governments could abuse the absence of the reasonableness standard.

Hayut questioned such a position, asking on what basis within the text of the law the court could make such an interpretation.

“What within the law allows us to differentiate between different types of reasonableness?” she asked. “Are you not inviting us to rewrite the law? If we say it doesn’t apply to interim governments… then we are rewriting the law.”

Bart later continued the argument: “It’s not that the reasonableness standard has been canceled. The precedent of previous decisions for the government to act with reasonableness remains. The attorney general and legal advisers will continue to tell the government when it is acting without reasonableness.”

Justice Ofer Grosskopf interjected: “But there will be no way to enforce it.”

Bart replied that “the idea that the ministers will only listen to the attorney general if [the court] has a sledgehammer [of being able to strike down government decisions through the reasonableness standard] is simplistic.”

To this, Justice Uzi Vogelman told Bart that his “argument is disconnected [from reality]. It’s a very optimistic vision.”

As the hearing came to a close, Hayut gave the parties 21 days to submit any addenda to their arguments, but capped those arguments at 10 pages. Bombach sought and was given an additional five pages.

After the High Court wrapped up its hearing, National Unity Party head Benny Gantz issued a statement saying the country must respect whatever ruling the justices make, adding that Netanyahu, who has refused to promise he would do so, “must say so clearly, in his own voice.”

Gantz said he continues to support reaching a broad agreement on the country’s “constitutional rules” but vowed to “stand strong against any attempt to politicize the justice system or harm the principle of democracy.”

He praised the hearing itself as one that “revealed a first-rate source for Israeli pride — a Supreme Court that held a pointed and respectful debate on an essential and important matter regarding the character and future of Israel.

“The debate showed us how critical effective judicial oversight is to the decisions made by public representatives,” he said, while also laying bare the dangers of the overhaul in its extreme form, which “could erase the Declaration of Independence, erase its values and principles, diminish our founding document. That is what we are fighting for. Those principles must serve as the basis of agreements between us.”

Gantz also argued that Tuesday’s hearing exposed the dire need in Israel for legislation that regulates when the Knesset can pass bills as Basic Laws.

The hearing came after more than eight months of sustained, massive protests and fierce opposition to the hardline Netanyahu coalition’s bid to radically overhaul the judiciary, starting with the passage of the reasonableness law, which the government pushed through the Knesset in July.

Political tensions flared ahead of the court hearing, and justice were reportedly issued added protection amid fears of disruptions and protests.

Times of Israel staff contributed to this report.

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