Bombshell leaked draft ruling shows High Court set to nix key judicial overhaul law

Historic 15-justice panel reportedly split 8-7 in favor of nullifying reasonableness law; judiciary slams leak, says ruling still being written; coalition MKs pan brewing decision

By Jeremy Sharon and Michael Bachner, TOI   28 Dec 2023

Supreme Court President Esther Hayut and all 14 other judges hear petitions against the ‘reasonableness law’ at the court in Jerusalem on September 12, 2023. /DEBBIE HILL

The High Court of Justice is likely to strike down the highly controversial reasonableness law passed by the government this summer as part of its judicial overhaul program, according to a draft decision leaked to the media on Wednesday evening, in what would be a bombshell ruling marking the first time Israel’s top court nullifies a quasi-constitutional Basic Law.

In a potentially landmark, polarizing decision, the unprecedented 15-justice panel comprising all members of the court is split eight in favor and seven against annulling the law, Channel 12 news reported Wednesday, citing a leaked document containing the non-final stance of each justice.

The report drew immediate, heated reactions, with coalition members chastising the expected decision and casting it as undermining the national unity being displayed during the ongoing war against Hamas. The group that petitioned for the law to be nullified claimed the leak was an attempt to intimidate the justices and push them to change their ruling and not void the legislation.

An amendment to Basic Law: The Judiciary passed in July, the reasonableness law bars all courts, including the High Court, from deliberating on or ruling against government and ministerial decisions on the basis of 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.

An unprecedented hearing in September, which included all the court’s 15 justices overseeing a 13-hour debate, dug deep into the foundations of Israel’s governing system and the balance of power between its branches of government.

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 the will of the majority with its own worldview. 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 spokesperson’s department of the Judicial Authority issued a statement Wednesday evening slamming the leak and saying that the drafting of the ruling has not yet been completed.

“We view unauthorized leaks with great severity and will not comment on it. The ruling will be published after [the process of] writing it has been completed,” read the statement.

In her written opinion in favor of striking down the legislation, as reported by Channel 12, former Chief Justice Esther Hayut — who retired a month after the hearing — was quoted as having written that the law “represents a deviation from the ‘outline constitution’ and therefore should have been passed with broad agreement, and not with an insubstantial coalition majority.”

Hayut is a liberal who was strongly critical of the law during the court hearing. Justices can submit written opinions on hearings they have presided over up to three months after they retire.

Hayut had in previous rulings invoked a judicial doctrine known as the “unconstitutional constitutional amendment,” which posited — theoretically until now — that a Basic Law that undermines Israel’s fundamental character as both a Jewish and democratic state can be deemed by the court to be unconstitutional.

Justice Ofer Groskopf, who similarly ruled to strike down the law, reportedly wrote that “the exemption [of the government and government ministers from the reasonableness standard] applies to those who stand at the top of the pyramid — but the demand to have the rule of law apply to them is at the heart of the imperative that no person be above the rule of law.”

On the dissenting side, conservative justice Yechiel Kasher reportedly wrote in his opinion that “the constitutional work of [passing] Basic Laws is under the authority of the Knesset and not of this court.”

This stance reflects the contention by proponents of judicial restraint that Israel’s Basic Laws, as the historically mandated progenitors of a full constitution and passed by the Knesset in its role as a constituent assembly and representative of the sovereign people, cannot be reviewed by the court.

Since Hayut reached the age of retirement on October 16, she only has until the middle of January to rule on this highly sensitive constitutional matter. Former Supreme Court Justice Anat Baron reached the age of retirement on October 12 and she too only has until the middle of January to rule on the reasonableness law.

Their inclusion in the reported ruling is crucial because Hayut and Baron both reportedly ruled to strike down the Basic Law, and the tally without their rulings would be seven to six against annulling the legislation.

Opposition MKs reacted furiously to the leak of the draft ruling.

“The attempt to influence the ruling of the High Court and to change the written opinions of the justices which were leaked is despicable and illegitimate,” said Yesh Atid MK Karin Elharar, who was a leading voice against the reasonableness limitation law when it was being prepared in committee.

“The judges must rule independently and without fear.”

Labor MK Gilad Kariv, another fervent opponent of the reasonableness law and the judicial overhaul more broadly, condemned the leak as “a disgrace” and alleged that it was government sources behind the leak.

“What they have done disrupts the operations of the Supreme Court in an unprecedented way and is clear evidence of their willingness to harm its status and its judges,” says Kariv.

And the Movement for Quality Government, one of the central petitioners in the case, demanded that Attorney General Gali Baharav-Miara “immediately open a criminal investigation into the leaking of the draft ruling, and probe the threats to Supreme Court President Esther Hayut.”

Religious Zionism MK Simcha Rothman, the head of the Knesset’s Constitution, Law and Justice Committee who spearheaded the overhaul push and the reasonableness limitation law itself, cast the expected ruling as “an act of national irresponsibility,” which “changes the fundamental principles of the State of Israel by a razor-thin margin.”

Arguing that he and the coalition were now only passing laws with broad consensus as a lesson from the deep rifts caused by the earlier overhaul push, Rothman urged the court “to come to its senses and connect with the spirit of unity and responsibility surging in all parts of the public, and to avoid creating unnecessary divisions in the nation.”

The group claimed that the leak was an attempt to “intimidate the justices and to affect their professional opinions,” slamming it as “mafia-like, dangerous conduct that suits dark regimes and not a democracy that respects the independence of the court and the justices.”

Finance Minister Bezalel Smotrich, the head of the Religious Zionism party, commented that at a time in which the nation is uniting behind the war effort following the October 7 Hamas onslaught, “there are those who insist on returning us to the discourse of October 6.”

“Striking down a Basic Law for the first time in the country’s history in a furtive, tight decision, is saddening and deepens division,” he said. “Just like the Knesset isn’t currently advancing contentious laws, it is appropriate and expected of the other branches of government to follow suit. This is a time for victory and unity.”