Reasonableness Clause: Israel’s High Court Strikes Down Netanyahu Gov’t Judicial Coup Law Limiting Its Power

Chen Maanit/Haaretz

In a decision by 8 out of 15 justices, the amendment passed by the Israeli Knesset in July, aiming to remove the court’s authority to overturn government decisions deemed unreasonable, is invalid ■ 12 of the 15 ruled that the Supreme Court has the authority to exercise judicial review of basic laws

Israel’s High Court ruled on Monday to nullify a law passed by the Knesset in July eliminating the reasonableness clause – a key bill advanced by Benjamin Netanyahu’s government as part of its judicial overhaul.

In an unprecedented move, all Supreme Court justices participated in the decision, with eight out of 15 ruling that the amendment to the Basic Law on the Judiciary, intended to strip the court of its authority to declare government decisions as unreasonable, is deemed invalid.

In addition, a wide majority of justices – 12 of the 15 – ruled that the Supreme Court has the authority to exercise judicial review of Israel’s basic laws, which have constitutional status in Israeli jurisprudence and to intervene in exceptional and extreme cases in which the Knesset has exceeded its authority as the branch of government empowered to legislate the provisions of the constitution through the passage of basic laws.

Former Supreme Court President Esther Hayut, who along with Justice Anat Baron recently retired from the court, and had three months following retirement to write an opinion in the case, wrote: “In my view, it is not possible to square the amendment to the Basic Law on the Judiciary and the principle of the separation of powers and the principle of the rule of law, which are two of the most important characteristics of our democratic system. Such a violation at the very heart of our founding narrative cannot stand.”

The court must protect Israel’s constitutional project, Hayut wrote, and exercise judicial review in the rare cases in which the Knesset exceeds its authority in passing basic laws. Nevertheless, she added, such judicial review is to be exercised only in the most extreme cases and with great caution.

“Today we must take an additional step and rule that in rare cases in which the beating heart of the Israeli form of constitution is harmed, this court is authorized to declare the invalidation of a basic law that has in some way exceeded the Knesset’s authority” to write a constitution, Hayut stated.

She said that it was necessary for the court to do so “in light of the unique structural characteristics of the Israeli constitutional system and given the constitutional practice in recent years that demonstrates the ease at which it is possible to change our system from its foundations.”

Hayut also addressed the timing of Monday’s opinion during wartime, stating that “even at this difficult time, the court must fulfill its role and decide on the issues brought before it. That’s all the more so when it comes to issues involving the core characteristics of the identity of Israel as a Jewish and democratic state.”

Justice Isaac Amit wrote that “the State of Israel is in need of additional engines to strengthen democratic government. But the amendment to the basic law that eliminated reasonableness grounds with respect to anything related to decisions of the cabinet and its ministers moves in the opposite direction and further strengthens the power of the executive branch.”

The decision to overturn the amendment to the basic law, Amit wrote, was due to “a step taken for the first time in the country’s history – the sweeping elimination of authority in a manner that wouldn’t permit the courts in Israel to provide an effective remedy in a sensitive and essential field of judicial review over the executive branch.”

Amit wrote that the amendment eliminating the court’s ability to strike down decisions of the cabinet and its members as unreasonable would mean “giving the cabinet ministers and the cabinet immunity in the field of appointments. The prospect, or more accurately, the risk of corrupting

the public service and damaging [its] incorruptibility as a result of manipulation of the professional staff at the various ministries is an unavoidable result of eliminating the reasonableness grounds – and the result is a certain prescription for the deterioration of the professional public service and its corruption.”

Justices Noam Sohlberg and David Mintz dissented from the majority on the issue of the court’s jurisdiction to exercise judicial review of basic laws and of the court’s jurisdiction to rule on the issue. They argued that there is no source of authority under Israeli law for such judicial review.

In addition, the dissenters wrote that even if such authority exists, the court should not have overturned the reasonableness amendment to the basic law because, they claimed, the case does not meet the criteria that the majority laid down for disqualification of a basic law.

Justice Yosef Elron issued his own dissent from the majority’s position, writing that even if it is appropriate for the court to intervene in extreme cases in connection with basic laws when it comes to violations of individual liberties, it cannot be stated that the reasonableness provision before the court is such a case. It is still not clear, he wrote, what the consequences of the amendment to the Basic Law on the Judiciary are and it cannot be assumed that they are as severe as the majority claims.

For her part, dissenting Justice Yael Willner wrote that the law doesn’t eliminate judicial review and doesn’t prevent anyone harmed by a cabinet decision or the decision of a minister to seek redress from the court. “The significance of the amendment is in changing the standard in exercising the reasonableness grounds, with regard to anything related to decisions of the cabinet and the ministers,” she wrote.

The law eliminating the reasonableness standard is a cornerstone of the Benjamin Netanyahu-led government’s efforts to weaken the country’s judicial system.

The reasonableness clause pertains to a provision that requires government actions to be reasonable and proportionate, and served as a benchmark for legal evaluations and judicial reviews of government decisions.

The justices who ruled to axe the amendment are: former president Esther Hayut, current care-taker president Uzi Vogelman, Isaac Amit, Anat Baron, Ofer Grosskopf, Chaled Kabub, Daphne Barak-Erez and Ruth Ronnen.

The justices who ruled to retain the law are Noam Sohlberg, Yechiel Meir Kasher, Yosef Elron, Alex Stein, Yael Willner, David Mintz and Gila Canfy Steinitz.

Last Wednesday, Channel 12 Newsreported a leaked draft ruling indicating that the court was poised to nullify the law in an eight to seven margin.

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