Hayut will hear reasonableness petitions, judge rules

Netanyahu shares Knesset speaker’s message of defiance toward High Court

PM signals support for Amir Ohana’s remark that coalition won’t accept voiding of Basic Laws; anti-overhaul protesters: PM ‘declared war on rule of law,’ aims to ‘crush the court’

Prime Minister Benjamin Netanyahu , right, converses with Knesset Speaker Amir Ohana during a Likud faction meeting on February 6, 2023. (Yonatan Sindel/Flash90)
Prime Minister Benjamin Netanyahu , right, converses with Knesset Speaker Amir Ohana during a Likud faction meeting on February 6, 2023. (Yonatan Sindel/Flash90)

Prime Minister Benjamin Netanyahu on Thursday shared on social media a speech by Knesset Speaker Amir Ohana from a day earlier, in which Ohana suggested the coalition may not accept a High Court of Justice ruling next week if it strikes down a recently passed controversial law amendment.

Netanyahu has not publicly committed to respecting the court’s judgment on the case. A refusal by the coalition to abide by a possible ruling against it would create a constitutional crisis over which branch of government has the final say.

The prime minister retweeted Ohana’s address about the so-called reasonableness law, in which the Knesset speaker said a court decision to uphold petitions against it could “plunge us into the abyss” and that the Knesset “won’t submissively allow itself to be trampled.”

Anti-overhaul protest organizers fiercely condemned Netanyahu’s retweet, saying: “A prime minister who encourages the Knesset to break the law is not a legitimate prime minister in a democratic state. Netanyahu has declared war on the rule of law… and he intends to crush the court in the coming weeks. He will discover millions of Israelis standing up to him and defending the courts.”

Ohana made the remarks during a press conference convened at the Knesset ahead of a September 12 hearing on petitions against the law, part of the government’s controversial judicial overhaul, which bars courts from intervening in government and ministerial decisions based on their “reasonableness.” Later, a separate hearing will be held on petitions against a law shielding prime ministers from forced recusal.

Both pieces of legislation are amendments to Israel’s quasi-constitutional Basic Laws, none of which the country’s top court has ever voided. The process for legislating Basic Laws is the same as other bills in Israel’s unicameral parliament, with no special majority needed.

Ohana argued that since 1977, when Likud took power for the first time, the justice system has unilaterally been siphoning off powers from politicians and appropriating them for itself.

“Now, we are facing a new and dangerous juncture, which could plunge us into the abyss, with the High Court soon holding discussions on Basic Laws,” he said.

Knesset Speaker Amir Ohana holds a press conference at the Knesset in Jerusalem, September 6, 2023. (Yonatan Sindel/Flash90)

“There is no debate, and there cannot be one, over the question of whether the Knesset has authorized the court to nullify Basic Laws,” he said, arguing that the court possesses no such power.

Likud MK Tally Gotliv on Thursday became the first Likud lawmaker to indicate she would reject a High Court decision, saying the court has “no authority” to give orders to Knesset members.

“If the High Court insists it can order me to stand on one leg, then I’ll respond that I have no intention of standing on one leg, even if the court calls for a hearing,” Gotliv said on social media.

Also on Thursday, Supreme Court Justice Uzi Vogelman rejected an appeal by Religious Zionism MK Simcha Rothman, one of the overhaul’s architects, against Supreme Court President Esther Hayut’s decision earlier this week not to recuse herself from discussing the petitions against the reasonableness law.

Rothman filed the appeal on Wednesday, arguing that there was a fear that Hayut is biased on the issue due to a speech she gave in January in which she strongly criticized all aspects of the judicial overhaul agenda presented by Justice Minister Yariv Levin earlier that month, including the plan to limit the High Court’s use of the reasonableness standard.

Vogelman, Hayut’s deputy, ruled that Hayut’s remarks “don’t indicate that the president’s mind is made up regarding the proceedings or the sides’ arguments.”

He said Hayut’s remarks related to the entire overhaul plan rather than a specific component of it, and argued that the current question wasn’t whether the amendment reflected an optimal policy, but whether it met constitutional legal benchmarks.

President of the Supreme Court Esther Hayut (center), Supreme Court Justices Uzi Vogelman (left) and Isaac Amit (right) during a court hearing on petitions against the coalition’s recusal law, August 3, 2023. (Yonatan Sindel/Flash90)

Earlier this week, the High Court rejected a government request to postpone the September 12 hearing on the reasonableness law. That law prohibits the courts from reviewing government action using the judicial standard of reasonableness, whereby it can determine that a decision was invalid because it was made without properly assessing key considerations, or while using improper considerations.

The petitioners against the law argue that it could potentially undermine the independence of senior law enforcement agencies, since without the reasonableness standard it will be difficult to challenge arbitrary dismissals of officials.

Ministers and coalition MKs have argued that the law is necessary to stop the High Court from asserting its own worldview on government decisions and actions, and have said that the dismissal of senior law enforcement officials will still be subject to other tools in administrative law.

The law is the only component of the coalition’s broader judicial overhaul program that has been passed by the Knesset. Like other parts of the radical reform agenda, it has faced massive opposition from protest groups and opposition parties.

The High Court will also soon hear petitions against Justice Minister Yariv Levin’s refusal to convene the Judicial Selection Committee, which he is trying to reconfigure as part of the judicial shakeup to give the coalition control over appointing new judges.

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