Coalition seeks delay of court hearings on reasonableness law, as Hayut’s clock ticks
Court chief’s imminent retirement creates a hard deadline for her involvement; attorney for coalition argues complexity of issues demands ‘thorough and comprehensive’ preparation
The government on Friday asked the High Court of Justice to delay by at least three weeks its planned hearings on petitions against legislation curtailing court oversight of cabinet decisions.
Attorney Ilan Bombach, who is representing the government privately on the matter after Attorney General Gali Baharav-Miara said she could not defend the so-called “reasonableness law,” told the court he needs more time to prepare to respond to the petitions filed against the law.
The legislation, an amendment to Basic Law: The Judiciary, prohibits all courts, including the Supreme Court, from using the judicial yardstick of “reasonableness” to review and potentially reverse government and ministerial decisions. It was the first major law passed in the government’s far-reaching judicial overhaul plans.
The court is currently set to convene on the matter on September 12.
During the hearing, Baharav-Miara told the court she opposes the proposal, although she agreed that the court could allow a “short delay” for the government to prepare its case.
“We need to respond to many petitions that were filed, and… we need to address the claims in all of them,” Bombach told Ynet ahead of the appeal. “An exhaustive study is needed comparing the situation in other countries. This requires thorough and comprehensive work, and that’s why we’ll ask for the delay.”
He added that he will want to review the attorney general’s position to the court on the matter. “We are asking for a reasonable timetable,” he said.
For the court, timing is of the essence, as Court President Esther Hayut and Justice Anat Baron are set to retire in mid-October (though they can still issue rulings in ongoing cases for a few months more). With the issue of judge selection at the heart of the government’s overhaul efforts and Justice Minister Yariv Levin refusing to convene the nation’s Judicial Selection Committee in its present form, there is currently no prospect of the two receiving replacements.
The court is set to review the highly contentious legislation with a full bench of all 15 justices for the first time in its history. The court has never before struck down a Basic Law, but it has also never before faced a law passed under such controversial circumstances and facing such intense public opposition.
Facing the very real prospect of a constitutional crisis as the judicial and executive branches question the very rules of the game by which they operate, the judges are likely to rebuff delays that will leave the matter unresolved when Hayut departs.
In the opposition, legislators immediately accused the government of seeking the delays precisely for that purpose.
“They legislated the law in a panicked rush, quick as lightning — but now they need all the time in the world to prepare for the hearing,” National Unity MK and former justice minister Gideon Sa’ar tweeted. “This is a transparent ploy. We see through it.”
Baharav-Miara told Justice Minister Yariv Levin on Wednesday that she would not defend the legislation in court and authorized him to enlist outside counsel.
Baharav-Miara’s decision followed disagreements between her and the government over the law, passed by the Knesset on July 24 despite intense opposition and months of popular protests. She is expected to recommend the court strike down the legislation, which one of her deputies last month called “extreme” and warned may cause “very severe harm” and “multi-system damage.”
The attorney general, who has frequently been at loggerheads with the government and faced calls for her firing, has expressed her opposition to other legislation before the High Court of Justice, including asking the judges to strike down a law barring the court from potentially ordering Prime Minister Benjamin Netanyahu to recuse himself amid his ongoing criminal trial.
In a statement sent out on her behalf by the Justice Ministry, Baharav-Miara informed Levin that due to “the apparent difference in views” between them, the government could seek alternative legal representation.
“The attorney general’s decision is based on the exceptional nature of events, in view of the fact that the petitions deal with precedent-setting and particularly sensitive constitutional issues,” the statement added.
Levin tapped Bombach, a lawyer who has represented the Likud party in the past and was vice chairman of the Central Elections Committee in 2022, as outside counsel in the case.
“The possibility that the High Court will strike down a Basic Law is unthinkable. They utterly don’t have the authority,” Bombach told Channel 12 news after Baharav-Miara’s announcement. “Even those firmly opposed to the judicial reform cannot agree to the High Court taking upon itself the authority to invalidate a Basic Law.”
The coalition argued that the amendment was critical to restrain what it sees as an overly activist court interfering in government decisions, while opponents argued the reasonableness standard is a key tool for protecting certain rights and the independence of law enforcement officials.
The amendment was approved by the Knesset with a majority of 64-0, since the vote was boycotted by all opposition MKs.
Last week, the High Court issued a procedural injunction against the law, requiring the government to explain why it believes the petitions against it should be struck down by the court. The court stressed the move was for “purposes of efficiency alone” and did not reflect its position.
Nullifying the quasi-constitutional Basic Law would be an unprecedented exercise of judicial review over the Knesset’s constituent authority. Prime Minister Benjamin Netanyahu has refused to say whether his government would abide by such a ruling.
