Movement for Quality of Government: Victory for democracy

Levin declares High Court ‘won’t stay our hand’ after justices annul overhaul law

Justice minister sets up potential standoff between government branches as coalition supporters fume; Gantz says decision must be respected

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, the so-called "reasonableness law", on July 24, 2023. (Yonatan Sindel/Flash90)
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, the so-called "reasonableness law", on July 24, 2023. (Yonatan Sindel/Flash90)

Justice Minister Yariv Levin criticized the High Court of Justice on Monday and said its landmark decision to strike down the government’s reasonableness limitation law would not stop Prime Minister Benjamin Netanyahu’s coalition from responding, without elaborating.

Levin said the ruling would not “stay our hand,” setting up a potential standoff between the branches of government, as supporters of Netanyahu’s right-wing and far-right coalition fumed over the decision to nix the first and only piece of judicial overhaul legislation that the ruling bloc managed to pass since Levin announced the intention to introduce sweeping changes to the judicial system a year ago. The announcement and efforts to bulldoze the legislation through parliament sparked almost 10 months of weekly anti-government mass protests and created unprecedented rifts in Israeli society.

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.

Levin, the architect of the judicial overhaul package, which would radically constrain the High Court’s independence and its capacity to protect minority rights from the governing political majority, accused the justices in his response statement of “taking into their hands all the authorities that are supposed to be divided between the three branches of government in a democracy.”

“This creates a situation in which it is impossible to legislate even a Basic Law or take any decision in the Knesset or the government without the agreement of the Supreme Court, depriving millions of citizens of their voice,” the justice minister maintained.

He called the ruling unprecedented in the democratic world and warned that it “won’t stay our hand,” without detailing how he planned to respond.

The High Court of Justice hears petitions against the government’s incapacitation law, September 28, 2023. (Chaim Goldberg/Flash90)

Levin said the court demonstrated “the opposite of the spirit of unity required these days for the success of our soldiers on the front.”

But he added that the government “will continue to act with restraint and responsibility,” so long as the IDF military campaign against Hamas in Gaza is in progress, indicating that the government’s response might wait until after the war is over.

Prime Minister Benjamin Netanyahu’s Likud party said it was “unfortunate that the Supreme Court decided to issue a ruling at the heart of the societal disagreement in Israel when IDF soldiers from right and left are fighting and endangering their lives.”

“The court’s decision contradicts the people’s desire for unity, particularly at a time of war.”

Netanyahu held off on issuing his own personal response as of late Monday night; he had repeatedly refused to state whether he would respect the High Court’s decision when asked in the months leading up to Monday’s ruling.

Meanwhile, moderate lawmakers including National Unity chairman Benny Gantz, who joined the government on a wartime, emergency basis, called for the High Court’s decision to be respected.

Gantz said that “on the eve of October 7, Israeli society had reached extreme places, division, and a discourse of hate we should not have come to.”

“The [High Court] ruling must be respected, and the lesson from conduct in the past year must be learned. We are brothers, and have a shared fate.”

After the war, “we will need to decide relations between the branches of government and legislate a “Basic Law: Legislation” that will anchor the status of Basic Laws. We will do so with broad agreement,” Gantz added.

National Unity MK Matan Kahana urged both sides to “take a deep breath and keep things in proportion.” He stressed that “a High Court ruling must be obeyed,” while criticizing both the Knesset and the court for making landmark decisions on such matters with the barest of majorities. He said the next Knesset should reach broad agreements on judicial reform.

A vote on the reasonableness bill at the assembly hall of the Knesset on July 24, 2023. (Yonatan Sindel/Flash90)

Opposition leader Yair Lapid said the High Court’s ruling “ends a difficult year of conflict that tore us apart from within and led to the worst disaster in our history.”

“The source of power of Israel, the basis for Israeli strength, is our being a Jewish, democratic, liberal, law-abiding state,” Lapid argued, offers “full backing” to the court.

“If the government restarts the fight over the High Court, they’ve learned nothing,” the Opposition chair asserted.

Labor Party chief Merav Michaeli said, “Even the conservative judges ruled today that the court has the authority to review and invalidate Basic Laws. There is no clearer statement to all the wreckers and destroyers of democracy. Israeli democracy will not give up.”

The Movement for Quality Government in Israel, a key petitioner against the government legislation, hailed the “historic verdict” as “a tremendous public victory for those who seek democracy.”

“A government and ministers who sought to exempt themselves from the rule of law have been told that there are judges in Jerusalem; that there is democracy; that there is a separation of powers.

The court split almost down the middle over the highly contentious legislation, with eight justices ruling to strike down the law, while seven ruled 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. 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.

That reasonableness standard 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.

Thousands of anti-judicial overhaul activists march into Jerusalem on Route 1 as part of protests against the government’s bill to severely limit the High Court of Justice’s use of the reasonableness standard, July 22, 2023. (Yonatan Sindel/Flash90)

In what was 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 marked 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 the ultimate say over its constitutional character.

Likud Knesset Speaker Amir Ohana said it was “obvious that the Supreme Court does not have any authority to annul Basic Laws.” But “it is even more obvious that we cannot deal with this so long as we are in the midst of a war.”

MK Simcha Rothman addresses the High Court of Justice, shown in a live screening of the hearing on the government’s reasonableness limitation law in the Tel Aviv Museum of Art, September 12, 2023. (Miriam Alster/Flash90)

Likud’s Culture and Sports Minister Miki Zohar said, “It would have been better had this ruling come out after these difficult days if only to prevent the return of divisive discourse.” He says, “We must at this time bite our lips, show responsibility, and maintain unity. That is our responsibility to the fallen [in the war].”

Likud Communications Minister Shlomo Karhi was more combative in his response. “While all of us set aside our differences for now to unite and lead Israel to complete victory over our enemies, the High Court justices are insisting on proving to us again how disconnected and unrepresentative they are of the people,” he said.

He accused the judges of issuing “a highly divisive ruling while many soldiers who are endangering their lives in a war for our homeland oppose the dangerous regime change it heralds.”

Finance Minister Bezalel Smotrich, chairman of the far-right Religious Zionism Party, called the ruling “extreme, divisive and one submitted without authority,” and added that “a black flag flies over the ruling.”

He claimed the court is “acting irresponsibly toward Israeli society while all of us on the battlefront and the home front are united for victory.”

National Security Minister Itamar Ben Gvir, who heads the far-right Otzma Yehudit party, called the ruling “dangerous and anti-democratic,” claiming it harmed Israel’s war effort.

Anti-overhaul activists protest outisde 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)

“At a time when our soldiers are giving their lives for the people of Israel in Gaza every day, the judges of the High Court decided to weaken their spirit.”

Religious Zionism’s Immigration and Absorption Minister Ofir Sofer said the timing of the ruling was “unfortunate, outrageous, and mainly shows a disconnect. But please keep things in proportion. We are still at the height of a difficult war and the challenge in the north is still ahead. Discourse must focus only on our united fight.”

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