Petitions against Reasonableness law

(Times of Israel) – The High Court held a historic and marathon hearing on Tuesday on petitions against a law curtailing judiciary oversight, with several justices challenging the government’s assertion that the top court does not have the authority to strike down quasi-constitutional Basic Laws such as the one in question.

During fraught exchanges between the court and the attorneys defending the so-called “reasonableness” legislation, one justice indicated that Israel’s democracy could be at stake, noting that “democracy dies in a series of small steps”, while the coalition’s lawyer rejected Israel’s foundational Declaration of Independence as an ostensible source of judicial authority, calling it a “hasty” document endorsed by unelected signatories.

But justices also pushed back against demands the measure be annulled out of hand, with court president Esther Hayut saying that only a “mortal blow” to democracy could justify the radical step of voiding a Basic Law, as lawyers representing petitioners against the law argued that the legislation – and other government proposals to overhaul the judiciary – were indeed a “deadly … strike against the court’s independence and the separation of powers”.

An unprecedented panel of all 15 justices presided over the highly charged session in response to petitions against the law, enacted in July, which restricts judicial review of government decisions using the rubric of reasonableness. While no decision is expected for weeks or possibly months, the bench’s reactions and questions, many of which cut to the heart of the state’s foundational tenets, were being closely watched for signs of what direction the court might take and whether a feared constitutional crisis may be in the offing.

The hearing also came as Prime Minister Benjamin Netanyahu entertains a compromise with the opposition on the judicial overhaul, which could lead to a softening of the existing legislation. Opposition leaders are highly distrustful of the Prime Minister’s intentions, however, and many of them have warned it is a ruse intended to mollify the court and Western observers without actual plans to follow through.

Throughout the session, which ended at 10.30pm after more than 13 hours, both sides emphasised the unprecedented nature of the proceedings; the court has never struck down a quasi-constitutional Basic Law, nor does it have the power to do so, government attorneys argued, while lawyers for the petitioners suggested that the legislation itself undermined Israel’s very character as a democracy, something no Basic Law has ever done.

“We’d prefer to believe it’s not so bad, but democracies can die,” warned attorney Nadav Weissman, representing the Bar Association, one of several petitioners. “Maybe slowly, but they die. The day a government says ‘We are preventing a citizen from going to the court to enforce the law,’ that’s where it starts.”

Ilan Bombach, the attorney who is representing the government in the High Court since Attorney-General Gali Baharav-Miara has refused to do so, argued that the justices are merely empowered to interpret the legislator’s words and that there is no legal or constitutional basis for them to review Basic Laws.

“I was sure this would never happen, the possibility that the honoured court would for the first time ever intervene in a Basic Law, without a shred of authority,” he said.

The hearing was essentially a clash over Israel’s proto-constitution, with the petitioners claiming that the new law barring the judiciary from reviewing government and ministerial decisions on the grounds of their “reasonableness” violates the country’s democratic underpinnings, while the government argues that Israel’s constitutional arrangement bars the court from intervening in the legislation itself.

With lawyers, politicians and justices in an existential tug-of-war over their respective powers, it remained unclear if Netanyahu’s right-wing coalition would honour a hypothetical court decision to strike down the law, amid a wider government effort to shackle the court, long seen by the hard right as a bastion of leftism (though it currently includes multiple judges seen as conservative).

Failure to honour a court ruling would precipitate an unprecedented constitutional clash, likely intensifying deep societal divisions exposed by the judicial overhaul and months of massive street protests.

“Reasonableness isn’t the story here. [The government] wants to crush the judiciary, that’s the story, that’s what the war is about,” said Eliad Shraga, an attorney for the Movement of Quality Government in Israel, one of the petitioners. “They want to chuck out the Attorney-General, bring back [Shas chief Aryeh] Deri to the cabinet, and not convene the Judicial Selection Committee.”

Deri’s appointment as minister was voided by the court earlier this year, to the outrage of the Shas chief and other coalition leaders. Justice Minister Yariv Levin has refused to convene the selection committee until his plans to change its make-up to allow greater governmental control are brought to fruition.

Justices repeatedly pushed back against the assertion that they lacked the authority to intervene. Justice Anat Baron asked if a Basic Law could be passed, for instance, to restrict elections to just once every 10 years, or to ban Arabs from voting.

“Who will determine if that is extremist or not?” she asked.

But they also nodded to the gravity of the single-day hearing and the hurdles that needed to be overcome should they decide to strike the law down.

“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 state,” Hayut acknowledged.

The crucial High Court hearing was one of the most consequential in the country’s history, coming after more than nine months of sustained, massive protests and fierce opposition to the hardline Netanyahu coalition’s bid to radically overhaul the judiciary. The petitioners, an array of government watchdog and civil society organisations, argue that the Basic Law amendment severely harms Israel’s democracy.

Political tensions flared ahead of the court hearing. Justices were reportedly issued added protection amid fears of disruptions and protests on the basis of intelligence that protesters might try to block the judges from travelling to Jerusalem for the court session. Some judges reportedly spent the night away from home as a precaution against difficulties in reaching the Supreme Court building in the capital on Tuesday.

In addition to the increased protection for the justices, there was also tight security on Tuesday at the court building as another precaution against disruption.

Tens of thousands of demonstrators rallied against government plans to shake up the judicial system outside the Supreme Court in Jerusalem on Monday.

Shortly before proceedings began, Justice Minister Yariv Levin issued a statement declaring the hearing was taking place “with the complete lack of authority” and saying it constitutes “a mortal blow to democracy and the status of the Knesset”.

Finance Minister Bezalel Smotrich warned the High Court against striking down part of the coalition’s legislative package after the hearings, telling Hayut that she had better not “dare” to overturn the law.

Leading opposition figure Benny Gantz said on Monday that he would be willing to accept a compromise deal on the judicial overhaul if it “preserved democracy”, amid reports that Netanyahu is planning to announce a “unilateral softening” of the legislation. However, Gantz reiterated his call from last week, when he rejected fresh talks with Netanyahu, for the Prime Minister to first prove he has the political support from his hardline coalition necessary to compromise.

“I’m not interested in Netanyahu’s motivations,” said Gantz, speaking at a conference at Reichman University. “If there is a solution placed on the table that will preserve democracy, I will be there.”

A TV poll published on Sunday indicated that the opposition continues to maintain a lead with the Israeli electorate, being projected to win a majority of 63 seats in the 120-member Knesset if elections were held today.

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