Opposition: Call is plot to reverse narrow reported ruling

Justice minister urges High Court not to issue reasonableness law ruling during war

After bombshell leaking of draft decision to void key judicial overhaul law, far-right MK Cohen says move would be ‘call for civil war’; justices said to convene emergency meeting

Justice Minister Yariv Levin arrives for a cabinet meeting at the Prime Minister's Office in Jerusalem on December 10, 2023. (Yonatan Sindel/Flash90)
Justice Minister Yariv Levin arrives for a cabinet meeting at the Prime Minister's Office in Jerusalem on December 10, 2023. (Yonatan Sindel/Flash90)

Justice Minister Yariv Levin issued a warning to the High Court of Justice on Thursday, as heated responses continued to pour in over the bombshell publication of a leaked draft ruling a day earlier that indicated justices are set to narrowly strike down the highly controversial reasonableness law passed this summer as part of the government’s judicial overhaul program.

In a potentially landmark, polarizing decision, the unprecedented 15-justice panel comprising all members of the court is split eight in favor and seven against annulling the law, Channel 12 reported Wednesday evening, citing a leaked document containing the non-final position of each justice.

Such a move would mark the first time Israel’s top court has nullified a quasi-constitutional Basic Law, and would infuriate many right-wing voters and politicians.

Levin, a key architect of the overhaul, urged the court not to issue its ruling for now, saying that a decision of this nature would be too divisive when the nation is uniting behind the war against the Hamas terror group in the Gaza Strip.

Opposition lawmakers, in turn, panned Levin’s call as a ploy intended to reverse the reported 8-7 ruling, by running out the clock on the votes of two key retired justices — who support nullifying the legislation — who have a three-month limit on ruling on cases they heard while still on the bench. This would make it 7-6 in favor of upholding the law.

“While our soldiers are fighting side by side on the various fronts, and while the entire nation is grieving the loss of many lives, the people of Israel must not be torn apart by disputes,” Levin said in a statement. “The citizens of Israel expect the High Court not to publish in wartime a ruling that is controversial even among its justices.

He asked the court to follow the lead of the Knesset, which is “working to ensure that the legislative procedures are conducted these days with broad consensus, while avoiding discussion of the controversial issues,” referring to the emergency wartime government formed when the National Unity party joined. “It is appropriate that the High Court behave with a similar sense of responsibility and not create a deep rift in the nation, at a time when we are all driven to unity.”

Supreme Court Justice Uzi Vogelman at a court hearing on August 2, 2023. (Yonatan Sindel/Flash90)

Opposition MKs slammed Levin’s call to delay the ruling, saying he knows full well that this would likely swing the court’s decision in favor of the government.

Former chief justice Esther Hayut and former justice Anat Baron both retired in the middle of October and can only issue rulings until the middle of January, on cases they have heard. Since both are reportedly in favor of striking down the reasonableness law, waiting until after the war would create a majority against annulling the legislation.

“This is an idiotic attempt by the justice minister to influence the ruling while it is still being written,” Yesh Atid MK Meirav Cohen posted on X, formerly Twitter.

“He knows that two judges, including the former court president, can’t issue rulings after January 12, and he knows the war won’t be over by then. The justice minister is basically trying to influence the High Court’s ruling by retroactively changing the composition of the bench.”

Fellow Yesh Atid MK Karine Elharrar told Levin his comments show he doesn’t understand the role of the judiciary.

“They aren’t politicians and their job is to rule on petitions without instructions from anyone, including the justice minister. The minister is expected to respect every ruling even if he doesn’t agree with it,” she wrote in a post on X.

Then-president of the Supreme Court Esther Hayut at the Supreme Court in Jerusalem, September 28, 2023. (Chaim Goldberg/Flash90)

Channel 12 reported Thursday, without citing sources, that in the wake of the leak, High Court justices had been told to speed up writing their opinions so that a final decision could be published as soon as possible. The report said that judges have been critical of Hayut for having lain down a tight schedule that would enable her to take part in the final ruling. That criticism has increased, the report said, given that Hayut and Baron appear to be the deciding factors.

Meanwhile, acting Chief Justice Uzi Vogelman has reportedly called an emergency meeting of all the court’s justices about the leaked draft.

The judges were to consider the content of the leaked material and its impact on their ability to carry out their role in the matter, according to Hebrew media reports.

According to Channel 13 news, one option under consideration was to require justices to undergo lie-detector tests to find out who leaked the draft ruling.

Other political reactions to Wednesday’s report included MK Almog Cohen, of the far-right Otzma Yehudit party, charging that the court striking down the reasonableness law would be “a call for civil war.”

“It is telling people ‘go out onto the streets to fight one another,'” Almog told Radio 103FM. “What do we want here? Blood on the streets? Bodies in the Yarkon [River in Tel Aviv]?”

“Do we not understand the consequences for democracy of canceling a Basic Law?” he said.

“Especially at this time, it would be fitting for the High Court judges to not deal with the redesign of democracy or changing it into a dark state in which elected officials and voters have no significance,” he said.

Otzma Yehudit MK Almog Cohen speaks during a rally in support of the government’s planned judicial overhaul, in Tel Aviv on June 1, 2023. (Avshalom Sassoni/Flash90)

His party leader, National Security Minister Itamar Ben Gvir, tweeted that the High Court has “no authority to invalidate Basic Laws. Period. Exclamation mark.

“The public is the one who elects its representatives, and by virtue of their election the elected representatives enact laws,” he continued. “This is how things work in a proper democratic country. High Court judges must show national responsibility and accept the people’s decision — and not try to turn Israel into a full legal dictatorship.”

Firebrand Likud MK Tally Gotliv tweeted: “The High Court justice who leaked the draft of the court ruling, and it is clear to me that it was a justice, should have enough courage to not sign on the ruling and so push off its publication. We are burying our heroic soldiers and the High Court, like a thief in the night, is reviving division and incitement in public discourse. Shame.”

Far-right National Security Minister Itamar Ben Gvir leads a faction meeting of his Otzma Yehudit party at the Knesset, December 18, 2023. (Chaim Goldberg/Flash90)

Lawmaker Idan Roll of the opposition-leading Yesh Atid party said: “There will be no civil war here.”

“Politicians, media people, senior tweeters — we all have the responsibility to calm the discourse,” Roll said in a statement reported by the Maariv outlet.

“Nothing official has been published yet and the madness is already beginning,” he said. “We must let the High Court of Justice publish its ruling and then express an opinion on it.”

Roll also addressed suggestions by some that the draft was deliberately leaked to generate pressure on judges. “Any attempt, whether intentional or simply out of irresponsibility, to influence the ruling of the High Court is fundamentally wrong,” he said.

MK Idan Roll, left, at a protest outside the Knesset in Jerusalem against the government’s planned judicial overhaul, on March 27, 2023. (Erik Marmor/Flash90)

Coalition lawmakers were reportedly also considering new legislation aimed at forcing the court to delay the publication of its final ruling on the matter until the war with Hamas is concluded.

War erupted when the terror group carried out a devastating October 7 attack in which over 1,200 people, mostly civilians, were killed and some 240 abducted to Gaza. The campaign to destroy Hamas and replace it with another regime is expected to take months in the least.

A bill would focus on the current arrangement under which justices can submit written opinions on hearings they have presided over only for three months after they retire, Walla reported.

The suggestion to apparently stretch the grace period and therefore remove pressure from the court to publish a ruling soon was raised during coalition discussions Wednesday following the publication of the draft, the report said. However, the maneuver was said to face doubts from some who noted it would require the court to agree not to publish its ruling regardless. Also, an agreement that brought the National Unity party into the emergency government stipulates that any form of legislation must only be advanced if the party consents, and it is not clear that it would do so given its previous opposition to the judicial overhaul agenda.

MK Karine Elharrar speaks at Knesset Constitution, Law and Justice Committee hearing, June 25, 2023. (Yonatan Sindel/ Flash90)

The Movement for Quality Government, one of the central petitioners in the case, demanded Wednesday that Attorney General Gali Baharav-Miara immediately open a criminal investigation into the leaking of the draft ruling.

An amendment to Basic Law: The Judiciary, the reasonableness law that passed in July bars all courts, including the High Court, from deliberating on or ruling against government and ministerial decisions based on the judicial standard of “reasonableness.”

That doctrine allows the High Court to annul government and ministerial decisions if it believes there have been substantive problems with the considerations used in such decisions, or with the weight given to those considerations.

The petitioners against the law, as well as Baharav-Miara, argued that it removed crucial guardrails protecting Israeli democracy, specifically the independence of some senior law enforcement officials, and boosted the government’s power at the expense of the judiciary to such an extent that it undermined Israel as a democracy.

The government and proponents of the law argued that the standard had given the court too broad a scope to intervene in policy decisions, and allowed the court to substitute the will of the majority with its own worldview. Additionally, the right-wing coalition and legal conservatives have strenuously argued that Basic Laws are not subject to judicial review and that the court lacks the power to void them.

Most Popular
read more: