Hayut: Knesset can’t undermine Israel’s key characteristics as Jewish democratic state

Former Supreme Court president Esther Hayut, who participated in today’s decision as one of her last cases, argues in her ruling to strike down the reasonableness limitation law that the Knesset in its role as the formulator of Israel’s quasi-constitutional Basic Laws cannot undermine Israel’s key characteristics as a Jewish and a democratic state.

She says this limitation stems from the principles laid out in the Declaration of Independence, the Basic Laws already legislated, and legal precedent from historic court rulings.

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

The former justice, who retired in October, argues that the reasonableness law is one such extreme case, as it abolishes judicial review through the judicial standard of reasonableness over all decisions made by the prime minister, the cabinet and government ministries without exception.

This, says Hayut, “does the most severe harm possible to the principle of the separation of powers and the principle of the rule of law,” and thus 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 writes.