Can Israel’s Supreme Court Disqualify the Law Eliminating Reasonableness?

Hours after the government approved the first step in its efforts to weaken the judiciary, at least three petitions asking the Supreme Court to nullify it were filed. Will the top court override the ‘reasonableness bill’? Experts are divided.

By Allison Kaplan Sommer, HAARETZ

Head of the Knesset Constitution, Law and Justice Committee Simcha Rothman speaking with National Security Minister Itamar Ben-Gvir in the Knesset on Monday.Credit: AMIR COHEN/REUTERS

After seven months of discussion, arguments and fiery mass protests over the Netanyahu government’s radical package of legislation that will transform Israeli democracy, the first step was finally taken on Monday.

With the opposition boycotting the decisive vote in protest, the government approved legislation that amends the Basic Law on the Judiciary by eliminating what is known as the “reasonableness standard.”

Under Israeli law, “reasonableness” refers to a balance between political and public interests in decision-making. An “unreasonable” decision is one that “disproportionately focuses on political interests without sufficient consideration for public trust and its protection.”

The previous law offered the public a way of challenging government decisions that are not in its best interest through use of reasonableness. The amended legislation eliminates the High Court of Justice’s power to block certain government decisions that it finds unreasonable. (Israel’s Supreme Court and High Court are the same body of 12 justices, but there is an important distinction: the Supreme Court hears appeals, while the High Court hears petitions. The High Court acts on civil liberties violations and conducts judicial supervision of administrative action by, for example, the government, local authorities and government agencies.)

The new law is not irreversible, but the path ahead for its opponents is uncertain.

One path to reversing the Knesset’s move is clear: Following the next general election, a future Knesset can potentially change the law with a simple majority vote. But as long as Prime Minister Benjamin Netanyahu’s current ruling coalition holds strong, that is unlikely to happen in the near future – and the next election isn’t due until 2026.

The only short-term hope of nullifying the legislation comes in the form of a petition to the High Court, asking that it rule that the new law conflicts with the country’s Basic Laws, thereby disqualifying it.

That step was taken just hours after the law passed Monday afternoon by at least three civil organizations, including the Movement for Quality Government. Opposition leader Yair Lapid also said he would file a petition in the coming days.

Israel’s Basic Laws are essentially a “working draft” for a future constitution. Israel’s High Court currently holds the power to disqualify legislation it views as being in violation of them. (A central goal of the Netanyahu government’s judicial overhaul effort is to take away the top court’s ability to strike down Basic Laws.) (NO ONE GAVE THE HIGH COURT THE RIGHT  TO DO THAT.)

Unprecedented move

Until now, the High Court has never invalidated any Basic Law. Only “regular laws” that violate Basic Laws have been disqualified. Therefore, striking down the legislation passed Monday would be an unprecedented move.

Constitutional law experts point to the existence of legal arguments for making such a ruling. In recent years, the Supreme Court (which also sits as the High Court) has established criteria that can be used in exceptional cases to cancel a Basic Law.

The first criteria exists if the top court determines that the Knesset has abused its authority by enacting a law that is defined as a Basic Law but represents action that is not considered a “constitutional norm.”

What are the odds of this happening? Hebrew University professor Yoav Dotan believes they are low.

”It would be difficult to envision how a law eliminating the reasonableness clause, as bad and harmful as it may be, would meet the very high bar that justifies the High Court’s intervention and cause it – in an unprecedented move – to invalidate a Basic Law,” Dotan says.

Amir Fuchs, a senior researcher at the Israel Democracy Institute, is more optimistic when it comes to the likelihood of High Court intervention – either by repealing the new law completely, or offering an interpretation that would weaken it to the point where it would no longer reflect the intentions of the Knesset members who proposed it. (In common law, when Courts interpret a law, the intention of the Members of Parliament,  who passed the law, are paramount.)

Fuchs “believes and hopes” the High Court will reject the law “due to its violation of a combination of three critical principles, which sit at the core of Israel’s democratic identity and are harmed by the cancellation of the reasonableness clause: violation of the principle of separation of powers; violation of the rule of law; and violation of the purity of elections.”

Prof. Suzie Navot, the Israel Democracy Institute’s vice president of research, is more cautious in her assessment of the odds that the High Court will use its power to block the law. However, she remains convinced that justification for the High Court’s intervention exists.

According to Navot, the High Court should step in based on the fact that the Supreme Court has given a key limit to the Knesset’s powers in regard to enacting or amending Basic Laws. The parliamentary body, she says, is not permitted to negate or seriously harm the “core values” of Israel as a Jewish and democratic state when it passes a Basic Law. (But what is a “Jewish and democratic state”?  Eliminating the reasonableness clause does not in any way harm those values.)

The core values argument

Prof. Yaniv Roznai of Reichman University says strong arguments for the High Court’s intervention exist based on the “core values” standard. “It’s quite clear that the amendment clashes with the core values,” he says, but is not certain it reaches the level of making Israel undemocratic. ( One can argue that the elimination of this law makes the country more democratic. What is more democratic than serving the will of the people?)

“One way to overcome this is to argue that there will never be a law passed declaring that Israel will no longer be a democracy. This will never happen all at once: the erosion of the core values will be incremental. So, the court would have to take a broad perspective and consider the big picture to look at the other laws that are pending and are likely to be passed,” he says.

An argument could be made that “the court shouldn’t wait for the final break in the fortress of democracy, it should intervene when it starts collapsing,” Roznai says. “In a militant democratic approach, the court can say: we’re putting boundaries in place in order to protect the core values of the state.”

Another potential argument to bring before the High Court, he notes, is that the legislative process which brought about the law was “flawed.” In the past, the court has invalidated laws on grounds that major flaws existed in their creation.

While these laws were “regular laws” and not Basic Laws, Roznai says, the standard of an acceptable legislation process should be even more important when it comes to constitutional law.

Taken together, with other legal arguments, it is possible that the High Court could package the reasoning together as justification to disqualify the law.

“I think with this extreme version of the law, there’s a good possibility the court will indeed intervene,” he says, “but it’s really hard to know.”

Experts say the chances of such a decision would ride on which justices on the panel are hearing the petition. For such a fateful decision, most agree the judicial panel should be maximal in number and include at least 11 justices. There is little to no chance that a conservative justice like David Mintz or Noam Sohlberg would consider invalidating such a law. By contrast, it is less clear as to whether liberal justices like Uzi Vogelman or Ruth Ronnen would use their power to disqualify it.

The argument that the Movement for Quality Government is pursuing is that the new amendment “fundamentally changes the basic structure of Israeli parliamentary democracy and the nature of the regime, while de facto abolishing the judiciary and seriously damaging the delicate fabric of the separation of powers and the system of checks and balances in the State of Israel.”

Giving “unlimited power to the executive authority is an abuse of constituent authority,” the movement argues.

Moreover, it claims in its petition that the legislative process was fundamentally flawed by denying the principle of Knesset members’ participation in the legislative process as it was rushed through, lacking “a suitable period of time to discuss the extensive regime change and its consequences, the lack of a proper and complete factual and legal infrastructure, in a way that deviates from the way in which Basic Laws were passed in the past.”

It points the finger at the chairman of the Knesset Constitution, Law and Justice Committee, MK Simcha Rothman, for having “misused his authority as the chairman of the Constitution Committee.”

T. Belman. What is a basic Law? How does a law become a Basic Law? This is the best answer to my questions I found.

“Regarding the question of the superiority of the basic laws over other laws, there are differences of opinion. Some claim that the basic laws are not superior to an ordinary law, unless they include a specific stipulation to the contrary. These base their position on the argument that since a basic law is passed by an ordinary majority (i.e. a majority of those voting), such a majority cannot grant superior status to a piece of legislation. Others claim that the superiority of basic laws stems from the fact that they are the product of the Knesset acting as the Constituent Assembly, and that from their mere definition as “basic laws” one may conclude that they are constitutionally superior.”

Confusing, isn’t it.