High Court ruling undoes sole achievement of government’s judicial overhaul

The High Court of Justice ruling striking down the reasonableness limitation law means that, for the moment, the sole achievement of the government’s judicial overhaul agenda has been undone.

Although, in some cases, the losing party in a High Court decision can request a new hearing with a larger panel of justices, in this case all 15 justices of the court heard the petitions against the law, so there is no prospect for another hearing.

In theory, the government could re-legislate the law in the knowledge that the decision to strike down the legislation was 8 to 7 and that two of the justices who ruled in the majority — former Supreme Court president Esther Hayut and Justice Anat Baron — have now retired. This means there is now a majority against striking down the law, but it seems doubtful that the government would want to adopt such a divisive and controversial process, at least now, during perhaps the worst security crisis Israel has faced in half a century.

The government could also in theory say it does not view the decision as valid and that, should the court reverse a government or ministerial decision based on the reasonableness standard, it would not respect such a ruling. Such a step would create an unprecedented constitutional crisis where the institutions of state would not know who to obey — the government or the court. But creating such constitutional chaos, certainly during the current war, would be an extreme reaction.