Shas set to push law allowing High Court to delay reasonableness ruling
Arguing against the deepening of national rifts, move would allow bench to postpone decision by extending time retired justices can vote on law, which is said set to be struck down
Lawmakers from the Shas coalition party are reportedly seeking to advance a bill that would temporarily extend the time in which High Court justices can publish rulings on petitions, allowing the bench to postpone a decision that is widely expected to strike down a piece of the government’s judicial overhaul.
In an unprecedented leak, a draft ruling published last week previewed the court’s intention to strike down, by an 8-7 vote, a law limiting the court’s ability to reverse government and ministerial decisions based on the doctrine of reasonableness.
Under the Shas proposal, expected to be filed Monday morning, justices would have nine months after retiring to issue a ruling, rather than the three months they are currently allowed. That would allow justices to postpone the ruling without having to exclude the votes of two justices who retired after the September hearing on the law and who can only be included in rulings for three months after stepping down.
The amendment is intended to keep the court from being forced to issue its ruling within the next two weeks while the country is at war, allowing deep societal divisions to resurface and puncture national unity needed during emergencies, according to a draft of the Shas proposal.
“At the end of the day, we have to accept the ruling. What the court says goes,” Shas MK Yossi Taieb told Army Radio Monday. “But why bring it up now?”
Justice Minister Yariv Levin has indicated that the coalition could back the measure, the Kan public broadcaster reported. Hebrew media reports indicated the proposal had been pushed by Shas head Aryeh Deri, whose role as a cabinet minister was voided as unreasonable earlier in the year due to past criminal convictions.
Opposition figures indicated they would oppose the proposal, underlining deep distrust of Prime Minister Benjamin Netanyahu’s ruling coalition, which came into power a year ago with a brash agenda aimed at weakening the judiciary and stripping the High Court of its ability to act as a check on government power.
“The separation of powers is the basis of democracy,” Opposition Leader Yair Lapid tweeted Sunday after the plan was first floated. He said his Yesh Atid party would “oppose this delusional proposal with all its might.”
Gideon Sa’ar, a former justice minister who has called for more moderate judicial reforms, also came out vociferously against the proposed move, calling it an attempt to hijack the legislative process to keep the ruling from being issued.
“The attempt to claim that this will halt divisiveness among the people is total poppycock since legislation like this will create greater division, many times over,” he tweeted.
Last week, Levin called on the court to postpone the ruling due to its potential to create disputes during wartime, a day after Channel 12 news reported on the leaked draft ruling. His call sparked accusations that the government wanted to run out the clock on the time that former court president Esther Hayut and justice Anat Baron — who were on the bench during a September hearing seeking to nullify the law but are now retired — could weigh in on the ruling.
Without the expected opposition of Hayut and Baron, who both stepped down in mid-October, the law would seemingly stand by a vote of 7-6.
Under the Shas proposal, Hayut and Baron would still be able to have their opinions count, keeping in place the 8-7 vote striking down the law.
The ruling would mark the first time Israel’s top court has nullified a quasi-constitutional Basic Law, and would likely infuriate many right-wing voters and politicians.
According to reports, Shas is seeking to rush the measure through the Knesset before the mid-January deadline for Hayut’s and Baron’s vote to be included in the ruling, which would remove the pressure for it to be issued by then.
Hayut was still president when the bench heard a petition against an amendment to Basic Law: The Judiciary passed in July, barring all courts, including the High Court, from deliberating on or ruling against government and ministerial decisions based on the judicial standard of “reasonableness.”
That doctrine allows the High Court to annul government and ministerial decisions if it believes there have been substantive problems with the considerations used in such decisions, or with the weight given to those considerations.
The petitioners against the law, as well as Attorney General Gali Baharav-Miara, argued that it removed crucial guardrails protecting Israeli democracy, specifically the independence of some senior law enforcement officials, and boosted the government’s power at the expense of the judiciary to such an extent that it undermined Israel as a democracy.
The government and proponents of the law argued that the standard had given the court too broad a scope to intervene in policy decisions, and allowed the court to substitute its own worldview for the will of the majority. Additionally, the right-wing coalition and legal conservatives have strenuously argued that Basic Laws are not subject to judicial review and that the court lacks the power to void them.
The government has largely put its judicial overhaul agenda on the backburner since October 7, when Hamas terrorists carried out an unprecedented assault on southern Israel, killing some 1,200 people and plunging the region into war.
In the months preceding the attacks, the government’s judicial overhaul agenda had sparked unprecedented protests and societal rifts.
On Sunday, former minister Galit Distel-Atbaryan offered a rare public apology for her role in contributing to the internal strife in Israel over the controversial judicial overhaul before the devastating October 7 attacks.
“I was part of the group that caused the state to weaken, that harmed people, that harmed citizens who in daily life are my friends, are my partner,” Distel-Atbaryan told Channel 13 news.
Responding to her interview Monday morning, MK Simcha Rothman, widely seen as the main architect of the overhaul, told Knesset TV there was “wall-to-wall support in Israel for judicial reforms.”
