The hearing in the High Court of Justice on Tuesday for petitions against the coalition’s “reasonableness” law will be perhaps the most cataclysmic clash between the state’s governing authorities ever witnessed in the country’s history.
On one side will be an array of government watchdog and civil society organizations arguing that the Basic Law amendment passed in July, which curtails the court’s ability to judge government decisions based on a doctrine of reasonableness, does mortal damage to Israel’s democracy.
On the other side will be the government insisting that it does no such thing, and that the court has no right of judicial review over quasi-constitutional Basic Laws.
And in the middle will be the court, which has in the past already asserted its right to review Basic Laws under limited circumstances, but which must decide if the terms of the reasonableness law warrant the use of the doomsday weapon of striking down legislation of a constitutional nature.
The momentous and extraordinary nature of this clash will be demonstrated by the sight of all 15 justices of the High Court assembled, somewhat squished, on the court bench, the first time a panel of this size will ever have been convened.
An amendment to Basic Law: The Judiciary, the reasonableness law bans all courts, including the Supreme Court, from deliberating and ruling against government and ministerial decisions on the basis of the judicial standard of reasonableness.
That reasonableness standard had allowed the Supreme Court to annul government and ministerial decisions if it believed that there had been substantive problems with the considerations used in such decisions, or the weight given to those considerations.
In the past, the court has used the reasonableness standard to force the government to allow a soccer stadium to be built in Jerusalem, and to make all classrooms in some schools in the Gaza border region rocket-proof. It was used to force the Kfar Vradim municipal council to build a mikveh, or ritual bath, for its religious residents, and of particular interest to the current government, the doctrine was employed to ban Shas leader Aryeh Deri from serving as a cabinet minister due to his legal entanglements.
The arguments against the law
The petitioners against the law, as well as Attorney General Gali Baharav-Miara, argue in their responses to the court that the law removes key guardrails protecting democracy and fundamentally alters the balance of power between the courts and the government and legislature to such an extent that it undermines Israel as a democracy.
This contention is key since the High Court has developed two doctrines that it said might be used in extreme circumstances to strike down or otherwise intervene over a Basic Law, one of which is if the Basic Law undermines either Israel’s Jewish or democratic identity.
The Movement for Quality Government in Israel, one of the petitioners, also contends that the reasonableness law gives the executive branch of government “unlimited power,” which represents a misuse of its authority to pass quasi-constitutional Basic Laws.
Petitioners argue in particular that the reasonableness standard is critical for protecting senior law enforcement agency officials, such as the attorney general, state attorney, and police commissioner, from arbitrary dismissal, which could politicize law enforcement and undermine the rule of law.
In addition, they argue that the use of the reasonableness standard is key during interim governments in election periods to ensure that government coffers are not misused to direct funds to voters as a form of electioneering.
“The reasonableness standard protects the independence of senior officials in the civil service, in particular those who perform the functions of gatekeepers, by preventing improper appointments and dismissals; [and] protects the legitimacy of the election process by preventing the use of governmental powers in a way that gives an unfair advantage to those who hold governmental power,” wrote Baharav-Miara in her response to the court. Her opinion took the radical step of calling for the Basic Law amendment to be struck down in its entirety.
She also argued that the reasonableness standard more generally defends the general public from “arbitrary exercise of power by the government,” without which the rights of the individual may be negatively impacted.
The government’s contention: No basis for judicial review
The government’s response to the petitions and the attorney general insists that the court has no right of judicial review over Basic Laws, since they form the basis of the country’s constitutional order, setting out how its institutions should act, and therefore define their role. As a result, the Basic Laws should be above those institutions, and not subject to them, including the Supreme Court.
Since the Knesset has never passed a law stipulating that the Supreme Court can review Basic Laws, or in fact any legislation, the government argued the court “has no power to create such a source of authority” for itself.
“The powers of the court, including those stipulated in Section 15 of Basic Law: The Judiciary, were not given to it by itself, but rather by the Sovereign, in that Basic Law,” argues the government response.
It also contended with the arguments against the content of the law itself, saying that the court still has other tools to review government and ministerial decisions without resorting to the reasonableness standard.
As a result, the legislation can in no way be considered to be undermining democracy, much less to the extreme extent previously indicated by the court as the bar for striking down a Basic Law.
What might the court decide?
The High Court will have a fateful decision to make once it has heard the oral arguments on Tuesday and interrogated the attorneys representing the various sides who are party to the case.
It will be several weeks or more until a verdict is released, but the justices’ questions will give observers an idea of how the bench may be leaning.
The court could, in theory, decide that the law is too sweeping in its reach, does fatally undermine the independence of senior law enforcement officials thereby undermining the rule of law which is essential to any democracy, and does constitute a threat to free and fair elections.
That being the case, it would strike down the law as incommensurate with Israel’s democratic identity as laid out in the Declaration of Independence and the requirements of democratic governance laid out in the Basic Laws.
Many constitutional scholars believe that scenario is unlikely. Although there are severe problems with the law in terms of the guardrails it tears down, the contention that it “shakes the foundations of democratic government,” as the Hebrew turn of phrase puts it, would be hard to maintain.
One option the court might take is to apply a tool called “interpretation” to the legislation, as it did with a recent law suspected of being passed for personal gain, where it delayed the implementation in order to keep the suspected beneficiary from being able to profit, while not actually striking it down.
In the case of the reasonableness law, it is hard to see how that tool could be used without actually rewriting the legislation, a step the court is unlikely to entertain.
Another more likely alternative is that the court would assert its right to review Basic Laws on the basis of the unconstitutional constitutional doctrine, but push off any decision until it can better evaluate the damage, or lack thereof, done by the reasonableness law.
If the court sees that over the course of the next year or more the independence of law enforcement officials is undermined or that civil rights or eroded, then it could decide to revisit the petitions against the legislation.
As it happens, the High Court, despite its detractors’ allegations, has a habit of kicking the can down the road.
It took 10 years for the court to rule against the Tal Law passed in 2002 which enshrined the government’s ability to give blanket military service exemptions to ultra-Orthodox men.
Similarly, it took the court 15 years to rule in favor of petitioners demanding the state give non-Orthodox converts citizenship.
Should the court use what is known as the ripeness doctrine to delay ruling until a more concrete picture can be formed as to the impact of the ruling, it could uphold its contention that it has the authority to protect Israel’s key national characteristics while avoiding a full-blown constitutional crisis.
The relative caution the court has shown in the past on many issues indicates that this could well be the likely outcome for the reasonableness law.
Tuesday’s hearing starting at 9 a.m. will likely stretch well into the afternoon, with the attorneys for the government and the Knesset pleading their case to the 15 justices, followed by the legal teams of the petitioners.
The government representatives will then be given a final chance to rebut those arguments.
A ruling will not be issued on Tuesday, and it will likely take weeks if not months for the court to hand down its decision.
It has been speculated that Supreme Court President Justice Esther Hayut will issue a decision on the day of her retirement, since retiring presidents have often used that stage to sign off with a flourish.
A retiring justice can, however, write decisions on cases they have heard as long as three months after they retire, so a decision could come as late as December.
The broader political context
The hearing over the reasonableness legislation also comes ahead of two other key cases the court will hear this month: petitions against Justice Minister Yariv Levin’s refusal to convene the Judicial Selection Committee, and petitions against the government’s recusal law, also an amendment to a Basic Law, which stipulates that the prime minister can only be determined to be incapacitated by the cabinet and Knesset, and only on medical grounds. Baharav-Miara has come out against that one as well.
Several scholars, including more conservative ones, have opined that the case against Levin appears to be compelling and that the court is likely to side with the petitioners against him, due to stipulations of Israeli administrative law requiring an official to exercise an authority invested in his office in “appropriate time.”
In the recusal law case, the court’s most senior justices in a preliminary hearing stated that the law was a “clearly personal” piece of legislation designed to assist Prime Minister Benjamin Netanyahu, and demanded the state explain why it should not delay implementation to circumvent that problem, which could run afoul of the “misuse of constitutional authority” doctrine.
Although the reasonableness law may not be struck down, at least for the meantime, it seems likely that the court and the government will nevertheless come to constitutional blows as a result of the pivotal hearings taking place this month.
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