ISRAEL AT WAR - DAY 147

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Likud warns any intervention 'will seriously harm democracy'

Unprecedented 15-judge panel to hear petitions against coalition’s reasonableness law

The full roster of the High Court will deliberate the government’s Basic Law amendment that limits court oversight, starting on September 12

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

President of the Supreme Court Esther Hayut and Supreme Court justices at the High Court in Jerusalem hear petitions against the so-called 'Tiberias law,' on July 30, 2023. (Yonatan Sindel/Flash90)
President of the Supreme Court Esther Hayut and Supreme Court justices at the High Court in Jerusalem hear petitions against the so-called 'Tiberias law,' on July 30, 2023. (Yonatan Sindel/Flash90)

The High Court of Justice will for the first time ever convene a 15-judge panel to hear petitions against the highly controversial law passed last week to limit the court’s oversight of its own actions.

Supreme Court President Esther Hayut issued a statement on Monday according to which she had decided that every justice on the court would preside over the hugely significant and explosive hearing against the “reasonableness” law which, together with the rest of the Netanyahu coalition’s judicial overhaul agenda, has created an unprecedented protest movement against the government.

The eight petitions the court has accepted against the law will be heard on September 12.

The law, an amendment to Basic Law: The Judiciary, prohibits the court from reviewing government and ministerial decisions through the judicial reasonableness standard.

Opponents of the law say the reasonableness standard serves as a critical safeguard against arbitrary or capricious government actions, or decisions made for inappropriate reasons, especially with regard to the dismissal of key law enforcement officials.

The coalition argues, however, that the Supreme Court has abused the standard, and that it gave the court too broad a scope to intervene in government policy.

Supreme Court President Esther Hayut during a hearing of petitions against the so-called ‘Tiberias law’ at the High Court in Jerusalem on July 30, 2023. (Yonatan Sindel/ Flash90)

In a forewarning response to the announcement Monday, the ruling Likud party said in a statement that Israeli governments “have always been careful to respect the law and the ruling of the court, and the court has always been careful to respect the Basic Laws.

“These two principles form the basis of the rule of law in Israel and of the balance between the branches of authority in any democracy. Any deviation from one of these principles will seriously harm Israel’s democracy,” it said, calling for “calm, dialogue, and responsibility.”

Opposition Leader Yair Lapid blasted Likud for the statement, calling it a “threat letter” and telling the party to act “with respect and the responsibility that has been put in your hands.”

“You want the court to stay away from Basic Laws? Then legislate like you should. Do your job,” Lapid said.

The head of the opposition’s Labor party, Merav Michaeli, also lashed Likud.

“Like a bunch of criminals, Likud issues an anonymous statement and tries to threaten judges and intimidate them before the hearing on the petitions,” Michaeli said in a statement.

Protest leaders in Tel Aviv denounced Likud’s remarks as a “mafiosi threat” by a prime minister facing graft charges and whose coalition is trying to “steal” the court.

“The High Court judges know that millions of Israelis will stand guard so that they can do their duty as guardians of democracy,” they said, adding that an upcoming protest on Wednesday will “send a clear message — we will protect the independent justice system.”

In several US media interviews, Prime Minister Benjamin Netanyahu refused to say whether his government would abide by a potential court ruling striking down the “reasonableness” law if it comes to that, saying only that Israel would be in “uncharted territory.”

A composite image, from left, of Justice Minister Yariv Levin at a government conference at the Prime Minister’s Office in Jerusalem on January 15, 2023; Supreme Court Chief Justice Esther Hayut at a hearing in Jerusalem on December 1, 2022; and Prime Minister Benjamin Netanyahu at the Prime Minister’s Office in Jerusalem on January 29, 2023. (Yonatan Sindel/Flash90)

Although this will be the first time 15 High Court justices hear a single case, it is not the first time that a full panel of the court has been convened — when there were fewer judges on the bench.

In 1970, a then-full panel of nine justices was convened to hear the Shalit case, which addressed the highly sensitive issue of who is a Jew according to state institutions.

The High Court has previously heard petitions on Basic Laws, or amendments to Basic Laws, most notably against Basic Law: Israel as the Nation-State of the Jewish People in 2020, which was criticized for what opponents said was the harm it did to equality in Israel, thereby undermining Israel’s democratic character.

In the decision on that case, heard by 11 justices, Hayut wrote in the majority opinion that striking down a Basic Law would be highly problematic due to the quasi-constitutional status of these laws, and that the High Court would only do so if such a law violated Israel’s Jewish or democratic character, as laid out in the Declaration of Independence.

The court ruled that that law could be interpreted as being in line with the values of equality and democracy, and therefore declined to strike it down, but the court ruling is seen as having developed the doctrine of the “unconstitutional constitutional amendment,” which could in the future be used to strike down a Basic Law.

The petitions against the reasonableness law also argue that it represents a misuse of constituent authority, meaning that the Knesset abused its authority to pass it.

In 2021, the High Court came very close to striking down an amendment to Basic Law: The Knesset, which had been passed in 2020 to extend the deadline for the approval of the state budget (to enable the troubled Netanyahu-Gantz coalition at the time to overcome its political differences).

The High Court ruled then that the amendment was a misuse of the Knesset’s authority in its capacity as constituent assembly when it passes a Basic Law, issued a “warning of cancellation” and stated that any such amendments to budget deadlines in the future that are passed for narrow, short term political purposes would be unconstitutional.

It did not, however, annul the amendment itself, since all the funds of the continuing budget that resulted from the 2020 extension had already been disbursed.

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