In historic ruling, High Court strikes down key judicial overhaul legislation

In 8 vs 7 decision, justices rule that reasonableness law undermines Israel’s democratic character; 13 justices assert court’s right in principle to strike down Basic Laws

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

Supreme Court President Esther Hayut and all 14 other judges hear petitions against the reasonableness limitation law, September 12, 2023. (Yonatan Sindel/ Flash90)
Supreme Court President Esther Hayut and all 14 other judges hear petitions against the reasonableness limitation law, September 12, 2023. (Yonatan Sindel/ Flash90)

In a deeply controversial landmark decision, the High Court of Justice struck down the government’s reasonableness limitation law on Monday, annulling for the first time in the country’s history one of its quasi-constitutional Basic Laws.

The court split almost down middle over the highly contentious legislation, the only law from the government’s polarizing judicial overhaul package to have been passed, with eight justices ruling to strike down the law and seven to uphold it.

But fully 13 out of the full 15-justice panel that heard the case wrote in their opinions that the court did have the authority to review Basic Laws. And of the five justices who asserted this right but declined to strike down the reasonableness law, three expressed deep concern over the legislation and wrote that it should be interpreted in a narrow manner to preserve aspects of the reasonableness standard.

In what is perhaps the most significant outcome of the decision, the court fully actualized in legal precedent the argument made in previous rulings by former Supreme Court justice Esther Hayut that it does have, in limited circumstances, the right to annul Basic Laws if they undermine the key characteristics of the State of Israel as a Jewish and a democratic country.

The ruling marks the culmination of a year-long battle between the government and the judiciary over the nature of Israel’s democracy, and the question of which branch of government has ultimate say over its constitutional character.

The reasonableness limitation law was advanced after the government backed down from far-reaching and extreme judicial overhaul legislation that many legal scholars said would have severely if not mortally damaged Israel’s democracy, including laws that would have given the ruling coalition near-total control over almost all judicial appointments, and which would have almost totally annulled judicial review over Knesset legislation.

Then-Supreme Court president justice Esther Hayut attends the funeral of former Israeli parliament speaker Shevach Weiss, at Mount Herzl Cemetery in Jerusalem, February 5, 2023. (Yonatan Sindel/Flash90)

That legislation was frozen by Prime Minister Benjamin Netanyahu at the end of March in the face of severe civil unrest, mass protests, reserve military service refusal, and the threat of nationwide strike action.

The reasonableness law, passed back in July as an amendment to Basic Law: The Judiciary, barred all courts, including the High Court, from deliberating on and ruling against government and ministerial decisions on the basis of the judicial standard of reasonableness.

That yardstick allowed the High 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.

The petitioners against the reasonableness law, as well as Attorney General Gali Baharav Miara, argued that it removed crucial guardrails protecting Israeli democracy and should therefore be struck down; the government argued that the standard gave the court too broad a scope to intervene in policy decisions that should be the purview of the government alone, and that the court had no authority to strike down Basic Laws in the first place.

In her opinion for the majority, Hayut referred back to her ruling on the nation-state law in 2021 where she developed the doctrine of the unconstitutional constitutional amendment and argued that the Knesset was not permitted to legislate a Basic Law, or amendment to one, which would undermine the Jewish or the democratic character of the state.

In her ruling to strike down the reasonableness limitation law, she repeated her arguments that her decision stems from the principles laid out in the Declaration of Independence, the formative document that set out the path for Israel’s constitutional arrangements, as well as the Basic Laws already legislated, and legal precedent from historic court rulings.

Hayut also pointed to the extreme ease with which a Basic Law can be changed with a simple majority in Knesset, and the fact that narrow political majorities can control this process, asserting that this reality means that judicial review over Basic Laws is critical to restraining the Knesset in extreme circumstances.

The former justice, who retired in October, argued that the reasonableness law is one such extreme case, since it abolishes use of the judicial standard of reasonableness in a blanket manner and without exception for decisions made by the prime minister, the cabinet and government ministries.

File: Anti-overhaul activists protest outside the Supreme Court in Jerusalem on the eve of a court hearing on petitions against the ‘reasonableness’ law, September 11, 2023. (Dan Ben-Dov / Protest Organizers)

This, said Hayut, “does the most severe harm possible to the principle of the separation of powers and the principle of the rule of law,” which constitutes “a severe blow to two of the most explicit characteristics of Israel as a democratic state.”

As such, the law must be annulled, she wrote.

Justice David Mintz, in an opinion for the minority, slammed Hayut’s ruling, describing her doctrine of the unconstitutional constitutional amendment as “something out of nothing,” which “undermines basic democratic principles including the separation of powers.”

Mintz, a strongly conservative justice, contended that the court’s ability to review and strike down even regular legislation was “not based on strong foundations” and said that as such there was “for sure no authority allowing for the court to deliberate on the validity of a Basic Law” or to strike one down.

“Annulling a Basic Law based on an amorphous doctrine and an undefined formula carries a heavy price from a democratic point of view, certainly when it comes to an issue about which the court itself is in an ‘institutional conflict of interest,’” wrote Mintz.

He argued further that the law does not prevent the court from reviewing government and ministerial decisions with other judicial doctrines, and “does not give them [the government] complete and total discretion, and does not grant immunity for their decisions.”

Justice Yael Wilner, a more moderate conservative figure than Mintz, adopted a more nuanced position, and wrote that the High Court does have the right to review, and, in extreme cases, strike down Basic Laws, while also expressing concern about the reasonableness limitation law.

Unlike Hayut and other liberal justices, Wilner based this authority not on the Declaration of Independence, but on Basic Law: The Judiciary, which empowers the court to give legal relief “for the sake of justice.”

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)

As such, she wrote that the doctrine of “existing interpretation” should be used to interpret the law more narrowly and allow for the reasonableness standard to be used in cases where an administrative decision is extremely unreasonable, but allow the law to stand for cases where that is not the case.

“Given the aforementioned interpretation, the amendment does not seriously harm the democratic identity of the State of Israel… in light of the fact that the amendment does not detract from the duty of the government and the ministers to act legally; and does not prevent effective judicial review, given the existence of additional grounds for judicial review,” she said.

Wilner wrote that although the law would mean that there are cases when there could be no judicial remedy for an apparent injustice done by an administrative decision, such decisions would still have to be taken in accordance with judicial standards of legitimate authority, valid administrative process, good faith, non-pertinent considerations, proportionality, arbitrariness, and discrimination.

Justices Alex Stein and Gila Canfy Steinitz made similar arguments in their written opinions, upholding the right of the court to strike down Basic Laws, and voicing concern over the reasonableness law, but ruling to more narrowly interpret that law so as not to strike it down in its entirety.

Justices Hayut (ret), Acting Supreme Court President Uzi Vogelman, Isaac Amit, Daphne Barak-Erez, Anat Baron (ret), Ofer Grosskopf, Chaled Kabub, and Ruth Ronnen ruled to strike down the reasonableness law.

Wilner, Stein, Steinitz, and Yechiel Kasher all wrote that although they opposed annulling the reasonableness law, the court did have the right to review and strike down Basic Laws, while Yosef Elron concurred that the court should not strike down the reasonableness standard, but wrote more circumspectly that the High Court could strike down a Basic Law only in extreme situations in which fundamental individual rights are harmed, and as a last resort.

Only Mintz and fellow conservative Noam Sohlberg argued that the High Court had no authority whatsoever to annul Basic Laws.

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