High Court ‘reasonableness’ ruling may presage return to tribalism and overhaul fight

If accurate, a leaked draft indicating justices will strike down government’s controversial legislation will have a deep constitutional impact. It may also strengthen Netanyahu

Jeremy Sharon

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

Prime Minister Benjamin Netanyahu, left, attends a ceremony in the Hall of Remembrance at the Yad Vashem holocaust museum, on Holocaust Remembrance Day April 18, 2023. (Erik Marmor/Flash90)
Prime Minister Benjamin Netanyahu, left, attends a ceremony in the Hall of Remembrance at the Yad Vashem holocaust museum, on Holocaust Remembrance Day April 18, 2023. (Erik Marmor/Flash90)

Israel is currently in the throes of potentially the most fateful war it has fought in half a century. While making constant advances, it has also suffered grievous blows, with nearly 1,400 people killed on and since October 7, and more of its soldiers dying in combat in Gaza every day.

As the blood continues to flow from those national wounds, others nearly forgotten were opened up again Wednesday night after a draft of the High Court of Justice’s ruling on the government’s incredibly contentious reasonableness limitation law was leaked to the press.

Instantaneously, the divisions and schisms of the era before October 7 flared back up as news broke that the court is apparently poised to strike down the only substantial element of the government’s judicial overhaul agenda that it had managed to pass.

After three months of near-silence on issues not pertaining to the war and a general rally around the flag effect, the buried disputes burst out into the open air once more.

The amendment to Basic Law: The Judiciary passed in July would bar all courts from deliberating on or ruling against government and ministerial decisions on the basis of the judicial standard of “reasonableness,” thus curbing the High Court’s power to strike down such decisions. Its passage was a key part of the government’s divisive judicial overhaul that sparked an intense, unprecedented national protest movement.

The reasonableness standard allowed the High Court to annul government and ministerial decisions if it believed there had been substantive problems with the considerations used in such decisions, or the weight given to those considerations.

Government ministers and coalition MKs hit out at the court after the leak, warning it not to issue such a controversial ruling during a time of national crisis, while opposition MKs denounced the leak itself and accused government officials of being behind it as part of an ostensible effort to sway potentially-wavering justices away from striking down the legislation.

Beyond the disheartening but predictable political bickering, a ruling to strike down the reasonableness law, should the reports turn out to be accurate, would have important political consequences in the near term, and huge constitutional ramifications for the country going forward.

Coalition lawmakers crowd around Justice Minister Yariv Levin to take a celebratory selfie in the Knesset plenum, as they pass the first of the coalition’s judicial overhaul laws, July 24, 2023. (Yonatan Sindel/Flash90)

If the court does indeed strike down the reasonableness limitation law it could have a significant impact on the turbulent political situation the country finds itself in at present.

Since the outbreak of the war, the yawning political schism that had beset the country up to October 7 had been bandaged up to some extent — though certainly not healed — by the grave and sobering situation Israel found itself in, and the need for national unity in the face of the multiple threats to the country.

At the same time, political support for Prime Minister Benjamin Netanyahu and his Likud party collapsed. Many expect a fresh election in the coming months, with opinion polls indicating vast numbers of voters on the Israeli right could desert the long-time premier in favor of the centrist National Unity leader Benny Gantz if a vote is called.

Political and societal divisions within the country have long been a source of political strength for Netanyahu, but the catastrophic multi-system failures of October 7 in the country he has led for so long critically undermined a key aspect of his image — that of a leader who on matters of national security is strong and dependable.

But a court ruling in the next few weeks to annul the reasonableness law would certainly refocus the national consciousness on those political and societal divisions — possibly to Netanyahu’s benefit.

Gantz and his party were adamantly opposed to the government, the reasonableness law and the rest of the judicial overhaul, and argued strongly against the restriction to the High Court’s powers of judicial review that the legislation affected.

But the war led Gantz to recalculate, and National Unity entered into an emergency government with Netanyahu to lead the war effort — on condition that all other matters be set aside for the duration of the campaign.

If the law is struck down, some right-wing voters who supported the law and the Netanyahu government’s overhaul agenda could reconsider their instinct to abandon the prime minister in the face of the judiciary’s defiance of what Netanyahu and his cabinet colleagues insist is the will of the people.

War cabinet minister Benny Gantz (right) with Prime Minister Benjamin Netanyahu during a press conference at the Defense Ministry, in Tel Aviv. December 16, 2023. (Noam Revkin Fenton/Flash90)

That basic tribalism, so visceral in Israel before October 7, could rear its unpleasant visage once again and play into Netanyahu’s desire to maintain his grip on power once the war is done or is dialed down.

The impact of the ruling will, however, have a far deeper and longer-term impact on the country than the immediate political fallout.

The High Court has never before struck down any of the Basic Laws that comprise Israel’s patchwork of proto-constitutional legislation, because of the supposed weight those laws have within the country’s system of government.

In fact, the High Court has based the 20-odd decisions it has made to annul Knesset legislation on the principles laid out in those very Basic Laws, arguing that their constitutional heft gives the court the right of judicial review over laws passed by parliament.

Conservatives and large swaths of the Israeli right have chafed against that authority, developed in large part from the landmark 1995 Bank Mizrachi ruling, which they claimed gave excessive power to the High Court to the detriment of the legislature.

Striking down a Basic Law, or as in this case an amendment to one, would further increase the High Court’s authority over the Knesset, by asserting that the court can tell the legislature not only when its regular laws violate the rules of the game, but what the rules of the game can actually be — albeit in very narrow circumstances.

A ruling of this nature would enshrine in precedent the court’s ability to serve as the ultimate arbiter of Israeli democracy and its system of government in the face of the vagaries of Israel’s volatile politics, and absent a full and rigid constitution.

Supreme Court President Esther Hayut, center, and all 14 other judges hear petitions against the ‘reasonableness law’ at the court in Jerusalem on September 12, 2023. (Debbie Hill / Pool / AFP)

But that might not be the end of the story.

Before the war, government ministers had asserted forcefully that they did not believe the High Court had the right to review Basic Laws, and warned that they may not abide by a decision to strike down the reasonableness legislation.

Such a reaction would have sparked off a severe constitutional crisis in which the institutions of state would be unsure of which authority to obey, the government or the judiciary.

The crisis engendered by Hamas’s savage invasion of southern Israel and the consequent war, combined with the severe blow to the government’s political standing as a result of that assault, may serve to avert a crisis of that nature. Encumbered by the political burden of the searing failures that enabled Hamas’s attack to be so devastating, and facing the challenges of the ongoing war, the government would be loath to defy the court and launch an internal crisis amid the external one.

But on the day after the war, as the expression goes, Israel could see itself thrust swiftly back into the stormy political reality that had taken hold of it throughout most of 2023. And the humbling lessons of October 7 could all too soon be forgotten.

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