Judges challenge government’s assertion that High Court can’t intervene in Basic Laws

Ilan Bombach, the attorney who is representing the government in the High Court hearing on the reasonableness law since Attorney General Gali Baharav-Miara refuses to do so, addresses the court and focuses on the argument that the top court lacks the authority to strike down quasi-constitutional Basic Laws.

Bombach says the justices are merely empowered to interpret the legislator’s words, and that there is no legal or constitutional basis for them reviewing Basic Laws.

In response, Justice Alex Stein asks: “What is the source of the Knesset to legislate laws?”

When Bombach points to a 1950 Supreme Court ruling, the judge points out that the Knesset was formed before that and that the original source of power is the Declaration of Independence.

Multiple justices challenge Bombach during the hearing by indicating that in their view, since the Declaration of Independence defines Israel as a Jewish and democratic state, the Knesset cannot legislate laws — even Basic Laws — that erode Israel’s Jewish or democratic character. If the Knesset is limited in its capacity to pass Basic Laws, that would mean the High Court has the authority to review Basic Laws.

Bombach is rebuked by the judges for downplaying the significance of the Declaration of Independence.

“Because 37 people were authorized to sign the hasty Declaration of Independence, which at the last moment was still in draft stage, [the Declaration] should bind those who are supposed to be in the future?” Bombach asks the court.

“Would it be conceivable that people who were never elected, these 37 people, the members of the Provisional State Council, unwittingly created a document for us called a constitution that would bind all future generations? It is unthinkable,” Bombach continues.

Bombach adds that the people elected the Knesset as a constituent branch, which legislates Basic Laws, in addition to its power as a legislative branch, and that the Knesset’s power additionally stems from the people’s choice.

Bombach tries several times to switch the discussion to the reasonableness law itself, calling the question of the Knesset’s source of power a “theoretical, academic” discussion, but the justices press on the matter, pointing out that the government’s argument began by stressing the High Court’s lack of authority to intervene in Basic Laws.