From the Liveblog of
Monday, January 1, 2024
In historic 1st, High Court strikes down Basic Law amendment, voiding reasonableness law
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
In a monumental, highly controversial decision, the High Court of Justice strikes down legislation passed earlier this year that curtailed judicial oversight of the government, annulling for the first time in Israel’s history an element of one of its quasi-constitutional Basic Laws.
The court split almost down the middle over the highly contentious legislation, which eliminated judicial use of the “reasonableness” standard — the only significant law from the government’s judicial overhaul agenda to have been passed so far. Eight justices vote in favor of striking down the law, while seven vote to uphold it.
The ruling establishes in legal precedent the High Court’s contention that it has, in limited circumstances, the right to annul Basic Laws, despite these being the basis of authority for all state institutions, including the court.
Twelve of the 15 justices agree the court does have the authority to strike down Basic Laws.
The reasonableness law, passed back in July as an amendment to Basic Law: The Judiciary, bars 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.
The petitioners against the law, as well as Attorney General Gali Baharav Miara, argued 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 which should be the purview of the government alone, and that the court had no authority to strike down Basic Laws in the first place.
Before October 7, some government ministers and coalition MKs indicated they may not respect a decision to annul the legislation, which would lead to a severe constitutional crisis. The ongoing war against Hamas and Hezbollah may temper such reactions, however.
Liberal justices, including Acting Supreme Court President Uzi Vogelman, expressed deep concern during the September hearing on the law that it annulled all effective judicial review over government and ministerial decisions. Conservative justices such as David Mintz and Noam Sohlberg opined, however, that there was no justification within Israel’s constitutional make-up for the High Court to strike down Basic Laws.
