Overhaul hearing – bitter fight for quasi-constitutional primacy

A legal drama of the highest order unfolded in the High Court of Justice on Tuesday, as arguments that cut to the core of Israel’s constitutional character were debated by all 15 justices of the court and attorneys for and against the government’s reasonableness limitation law.

Tensions rose to a crescendo during the marathon hearing which lasted over 13 hours, when Knesset Constitution, Law and Justice Committee Chairman MK Simcha Rothman admonished the court by describing it as “an oligarchy” with no authority to overturn the will of the majority.

But sharp words were also exchanged when the government’s attorney sought to diminish the constitutional significance of Israel’s Declaration of Independence in order to refute claims made by petitioners that the court can, in extreme circumstances, annul parts of Israel’s constitutional arrangement.

At the center of the debate were two questions: whether or not the High Court has the right to judicial review over Israel’s quasi-constitutional Basic Laws, including the reasonableness law; and whether the legislation meets the court’s standard for doing such violent damage to Israel’s democratic character as to justify striking it down.

Numerous justices indicated in their questions and comments that they fundamentally disagree with the government’s contention that the court is unable to intervene over Israel’s Basic Laws, demanding on several occasions whether the Knesset is entitled to pass blatantly undemocratic legislation without it being subject to judicial review.

At the same time, conservative justices on the court demurred from the assertions of their more liberal colleagues, and strongly challenged the petitioners’ contention that there is any legal source for the idea that the court could strike down a law of a constitutional nature.

But despite what appears to be the position of the majority of justices on the court that the court does have this right, even the more centrist and liberal justices appeared skeptical that the reasonableness law is so damaging to Israel’s democracy as to warrant striking it down.

In one telling comment, Supreme Court President Esther Hayut appeared to pour cold water on the idea of using an “interpretative” tool to redefine the law so that it would not apply in certain circumstances in order to reduce the damage it does, saying it would turn the court into the legislature.

Limits of authority

The dispute over the court’s authority came to a head during the arguments made by attorney Ilan Bombach, representing the government.

Bombach was attempting to refute the argument made by Hayut in her 2021 written opinion on the Nation-State law that the High Court can strike down a Basic Law if it undermines, and does mortal damage to, either Israel’s Jewish or democratic character.

She based this doctrine on what she asserted was the constitutional weight of the 1948 Declaration of Independence, which states that Israel is a Jewish and democratic state, and which also gave instructions to begin forming a constitution, a task that was never completed and eventually abandoned in 1950 in favor of passing quasi-constitutional Basic Laws piecemeal.

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

Hayut, together with Justices Alex Stein and Yechiel Meir Kasher, immediately and pointedly demanded to know where, according to Bombach, the Knesset’s source to legislate Basic Laws came from.

When the attorney pointed to a landmark 1950 verdict, Stein quipped that “the state wasn’t established by the Harari decision, it was established by the Declaration of Independence,” referencing the constitutional mission that document laid out for the nascent country.

Justice Uzi Vogelman also interjected, pointing out that the government was trying to have its cake and eat it.

On the one hand, noted Vogelman, the government was arguing that the Declaration of Independence had no constitutional weight, but at the same time it was contending that the constitutional nature of the Basic Laws, derived from the Declaration of Independence’s call to form a constitution and the subsequent Harari decision, meant the High Court cannot strike such laws down.

Justices David Mintz and Noam Sohlberg, however, expressed heavy skepticism that the court has this authority, in response to arguments made by attorney Aner Helman, representing the attorney general who has called for the reasonableness law to be struck down.

Sohlberg at one stage cited comments made by former Supreme Court President Aharon Barak, credited/blamed for increased judicial activism since he declared Basic Laws to have constitutional weight in the 1990s. Sohlberg noted that Barak also said that only when the country has a full constitution could the court strike down a Basic Law as unconstitutional.

And he appeared to clash with Stein’s assertion that the Declaration of Independence could be used to justify striking down a Basic Law.

“We have to be faithful to history, [David] Ben Gurion said explicitly that the power of the Declaration of Independence cannot be used to strike down laws,” Sohlberg said.

Supreme Court President Esther Hayut and other justices at a High Court hearing on the ‘reasonableness law’ at the Supreme Court in Jerusalem, September 12, 2023. Judge Noam Sohlberg is at left. (Yonatan Sindel/Flash90)<

Mintz backed up his conservative colleague.

“By referring to the Declaration of Independence you are creating something out of nothing, there is no implied authority [from the Declaration of Independence],” said Mintz.

And Hayut, along with other justices, also posed challenging questions to the petitioners as to whether the reasonableness limitation law was so deleterious to democratic principles that the court could justify the extreme measure of striking down a Basic Law.

“We can’t nullify Basic Laws every other day. There needs to be a mortal blow to the basic tenets of the state as a democratic country,” Hayut maintained.

Stein, together with Justice Daphna Barak-Erez, questioned whether or not other judicial tools of administrative law could be used to moderate the tight limits placed by the law on the use of reasonableness.

And Kasher, although acknowledging the damage done by the law, questioned whether the judicial standard could be considered as critical to democratic standards as free and fair elections, an independent judiciary, and the separation of powers.

The court president did however protest the damage she said was done by the reasonableness law, which was enacted in July, noting that there were “thousands of individual decisions that ministers make that affect citizens’ daily lives,” and that those citizens now lack a key measure by which to gain relief from arbitrary decisions ministers might make.

She also pointed out that although the Knesset and government claim the government and its ministers are still required to act with reasonableness, in the absence of any enforcement mechanism that obligation was a dead letter.

“You are agreeing that there is a law but there is no judge,” asserted Hayut.

Vogelman was more blunt in his assessment.

“The law is designed to free the government from judicial review. That is the simple fact of the matter,” he said.

And Justice Isaac Amit professed his far-reaching worries over the reasonableness law and other measures in the offing.

“A democracy dies in a series of small steps,” he said.

‘Privileged elite’

But it was the rancorous exchange between Rothman and the High Court justices, including Hayut, which epitomized the constitutional crisis that has swept the country over the reasonableness law and the government’s broader radical reform program.

The Religious Zionism MK called the court “a privileged elite” and “an oligarchic regime,” and asserted that as such the only rights it would be able to protect in the long term were its own, adding that the court was itself in a conflict of interest since the case dealt with the justices’ own “honor, status, and authority.”

“We are not dealing with our honor or our status, we are dealing with the public interest — whether or not our hands will be tied from providing the public with relief,” interjected Hayut. “It’s a shame you are dealing with concepts of honor,” she reprimanded him.

Rothman in his prepared remarks and answers to the justices totally rejected any right the court had to review Basic Laws, insisting that “in a democracy the people are sovereign.” He claimed that if the court intervened over the reasonableness law it would be trampling on the ability of the public to express its opinion and to change the laws that run their lives, as well as the capacity of the public to determine how the government is run.

Asked if the court would still be unable to intervene if, for example, the Knesset passed a law to hold elections only once every 10 years or to ban Arabs from voting, Rothman said merely that if a government made mistakes it could be replaced at the ballot box by the people.

Rothman was essentially asserting his belief and that of the current government that the executive must have unrestrained power to express the will of the majority, while Hayut insisted that true democracy can only be upheld if the rights of the entire public, not just the majority, are protected at every moment — a true microcosm of Israel’s current constitutional crisis.

Who rules?

It seems relatively likely that there is a majority of justices on the court who believe that, were there to be legislation which does sufficiently egregious harm to Israel’s democracy, the court would be justified to strike that law down, even if that view is not unanimous.

But despite the importance that Hayut herself and some of her colleagues attributed to the reasonableness standard, there seemed to be enough skepticism on the bench to indicate that striking down this specific law may be too radical a step for this court.

The president’s comments that such a law must deal “a mortal blow” to democracy to warrant such intervention would seem to be proof of that.

And Hayut’s stated concern not to step into the shoes of the legislature, or more accurately the Knesset’s role as a constitutional authority, appears to preclude the court from using the tool of interpretation to reduce the scope of the legislation.

The court might decide instead to send the legislation back to the Knesset Constitution Committee for further deliberation without striking it down, although this too would be considered a drastic step.

Thus Hayut may suffice with issuing a written opinion asserting the court’s right to judicial review over Basic Laws, but declining to intervene over the reasonableness limitation law, at least before the impact of the legislation can be felt.

The final outcome of the hearing is difficult to guess, and it will take weeks if not months for the court to issue its verdict. (Hayut retires in October, and can weigh in on open cases for only three months after that, so the court has a January deadline for its ruling.)

But there is no doubting the historic nature of Tuesday’s hearing, nor the fact that it reflects a yawning chasm within Israel’s body politic as regards the nature of democracy and how the Jewish state should be governed.