Israeli High Court Sidesteps Judicial Overhaul Legislation

By Chen Maanit, HAARETZ

The court denied a petition filed by the right-wing Regavim organization against the defense minister and army officials, claiming they had unreasonably avoided demolishing illegal construction. The court’s handling of the case may demonstrate an effort to get around recent controversial legislation

Israel’s High Court denied a petition on Sunday filed by the right-wing nonprofit group Regavim which challenged the government’s policy regarding demolition of illegal construction in the West Bank.

The group claimed that the government granted immunity from demolition to illegal construction in Area C of the West Bank – the portion of the territory under full Israeli control.

The petition was filed against Defense Minster Yoav Gallant as well as high-ranking military officials claiming their decisions were unreasonable. Following the Netanyahu coalition’s legislation preventing the court from using the reasonableness standard to strike down government decisions, the court avoided discussing the defense minister’s actions. Instead, the discussion was limited to the actions of the military officials.

The court’s handling of the case may demonstrate an effort by the court to get around limitations placed on it by recent legislation. The controversial amendment to the Basic Law on the Judiciary passed by Netanyahu’s coalition in July deprives the court of the power to strike down decisions by the cabinet or individual cabinet ministers on the grounds that they are unreasonable.

In its ruling on Sunday, however, the court refrained from ruling on the reasonableness of the actions of Gallant, ruling that it was only the military officials named in the case and not Gallant himself who are responsible for carrying out demolition orders in Area C.<
><
>
<
>

<
>
<
>
<
>
<
>

The new Basic Law does not stop the court from striking down unreasonable policies of professional staff, and therefore may also provide the means in the future under some circumstances to strike down government policies on the grounds that they are within the areas of responsibility of the professional staff. The Regavim petition was filed against Gallant, against the head of the IDF’s Central Command, Yehuda Fuchs, and against the head of the Israeli Civil Administration in the West Bank, Fares Atila.<
>

<
>
<
>

Regavim maintained that all of the officials had unreasonably refrained from demolishing illegal construction. But Gallant is the only respondent in the case who is a member of the cabinet. Regavim argued that the authorities should not suspend demolition orders on illegal construction in cases in which those carrying out the construction also file requests for retroactive building permits that are not based on reasonable grounds. Such requests, Regavim said, are simply an effort to delay the demolitions.<
>

<
>
<
>

The organization, which was co-founded by Bezalel Smotrich, who is now the finance minister, supports Jewish settlement in the West Bank and has made it a priority to target illegal Palestinian construction in Area C. Writing for the three-justice panel, Justice Ofer Grosskopf stated that since the state had limited resources for enforcing the law, it could decide to give priority to those cases in which no applications for building permits have been filed. The other two justices on the panel were court President Esther Hayut and Justice Daphne Barak-Erez.<
>
<
>

On September 12, the court will be hearing challenges to the Basic Law on the reasonableness standard itself. The law deprives the court of striking down the actions by the cabinet or a cabinet minister, including the prime minister, or for their failure to take action. This will be the first time in the court’s history that a full panel of all 15 Supreme Court justices will be hearing a case. Last week, Attorney General Gali Baharav-Miara granted the cabinet permission to have a private lawyer represent it before the court after she found the Basic Law insupportable.

Proponents of the Basic Law claim that the reasonableness standard is too subjective. The High Court has used it as a key tool to subject government decisions to judicial review. If it stands, the Basic Law will make it more difficult to block government policies that are arbitrary, extreme or based on corrupt motives.<
>
<
>

<
>
<
>

But the court would still have other grounds to challenge government actions, including proportionality, improper extraneous considerations, lack of authority and other reasons. If the court strikes down the Basic Law, it raises the prospect of a constitutional crisis if the government refuses to abide by the decision. Prime Minister Benjamin Netanyahu has repeatedly declined to affirm that the government would obey an unfavorable High Court ruling.<
>
<
>
<
>
<
>
<
>

August 22, 2023 | 2 Comments »

Leave a Reply

2 Comments / 2 Comments

  2. I wrote to Naomi Kahn, Director, International Division, Regavim, to clarify something for me in this case.
    She replied,

    You haven’t got it quite right, I’m afraid. The limitation recently placed on the reasonableness clause bars the Supreme Court from adjudicating on ministerial (in other words, political) appointments and other decisions. It does not limit in any way the Supreme Court’s discretion to adjudicated matters in the professional realm – regulations or policy decisions that are based on civil service – level initiatives. That is precisely the realm involved in this case: a policy invented and implemented by the Civil Administration, which has given rise to an absurd result.