High Court issues procedural injunction against government’s reasonableness law

While such moves commonly indicate a shift in the burden of explanation from petitioner to respondent, court insists its decision is for ‘purposes of efficiency alone’

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

Supreme Court President Esther Hayut (center) alongside Justices Uzi Vogelman (left) and Isaac Amit (right) during a hearing on petitions against the coalition's recusal law, August 3, 2023. (Yonatan Sindel/Flash90)
Supreme Court President Esther Hayut (center) alongside Justices Uzi Vogelman (left) and Isaac Amit (right) during a hearing on petitions against the coalition's recusal law, August 3, 2023. (Yonatan Sindel/Flash90)

The High Court of Justice issued an injunction against the government on Wednesday evening, requiring it to explain why the petitions against its controversial reasonableness law should be struck down by the court.

The type of injunction issued by the court is often seen as switching the burden of explanation from requiring the petitioner to demonstrate why its petition should be accepted, to requiring the respondent to show why it should not be accepted.

In its Wednesday decision, however, the court wrote explicitly that it was issuing the injunction “for the purpose of efficiently dealing with the petitions, and for those reasons alone, without there being any expression of a position on the subject matter itself.”

The injunction means, though, that there will be just one hearing on the reasonableness limitation law, and just one set of responses from each side, streamlining the judicial process as the court stated in the decision, an attorney for the Movement of Quality Government in Israel, one of the petitioners, said.

He added that as a result of the injunction, the state’s legal representatives will plead in court first to convince it not to accept the petitions, and that this will be followed by the petitioners’ arguments in favor of the motions.

The reasonableness law, 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 law to pass out of the government’s far-reaching judicial overhaul plan.

Israeli police use a water cannon to disperse demonstrators blocking a road during a protest against plans by Prime Minister Benjamin Netanyahu’s government to pass the reasonableness limitation law, Monday, July 24, 2023. (AP Photo/Ohad Zwigenberg)

The coalition argues it is critical to restrain what it sees as an overly activist court interfering in government decisions, while opponents argue the reasonableness standard is a key tool for protecting certain rights and the independence of law enforcement officials.

In its Wednesday decision, the court gave the government — along with the Knesset, the Knesset’s Constitution, Law and Justice Committee which prepared the reasonableness legislation, and the attorney general — until September 3 to file their responses to the petitions, and gave the petitioners until September 7 to file their central claims.

The hearing has been set for September 12.

The court also said it was declining to accept several more petitions filed by organizations and political parties against the law, since the court announced two weeks ago that it would be taking up the case, which would be heard by an unprecedented 15-justice panel.

“We commend the High Court Justices who have shown courage and are standing up as a wall against the regime coup legislation which endangers the democratic future of the State of Israel,” said Movement for Quality Government chairman Attorney Eliad Shraga.

Ultranationalist National Security Minister Itamar Ben Gvir appeared to agree with Shraga that the decision did not bode well for the government’s law, and said it showed the court was “working through every avenue” to accept the petitions against the Basic Law amendment.

“Many people think that the justices who are dealing with the petition have already decided what they will rule. In order to increase public trust in the legal system, it was expected and proper for the court not to cut short proceedings and to allow a hearing with an open heart and an open mind,” said Ben Gvir.

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