Everything you need to know about today’s Supreme Court vs. Netanyahu government drama – and what’s at stake for Israel
President of the Israeli Supreme Court Esther Hayut and all fifteen judges assemble to hear petitions against the ‘reasonableness clause’ of the judicial overhaul at the court in Jerusalem, on September 12, 2023. Photo by Getty Images
This article originally appeared on Haaretz, and was reprinted here with permission. Sign up here to get Haaretz’s free Daily Brief newsletter delivered to your inbox.
No matter the result, September 12, 2023 will be remembered as a historic day for Israeli democracy – and possibly the beginning of a constitutional crisis, or worse.
For the first time ever, an entire Supreme Court of 15 justices is being impaneled to hear petitions challenging a law passed by the Netanyahu government in the Knesset that would alter one of the country’s Basic Laws – the closest thing Israel has to a constitution. If it rules in favor of the petitioners, it will be the first time a Basic Law is disqualified since the first one was passed in 1950.
The law being challenged was passed on July 24 and amends Israel’s Basic Law on the Judiciary. The amendment abolishes what is known as the reasonableness standard, removing the ability of Israel’s Supreme Court to nullify administrative state actions – most notably, political appointments – on the grounds that they are “extremely unreasonable.”
The law eliminating the reasonableness standard was the first piece of legislation to be passed as part of the Netanyahu government’s highly controversial comprehensive overhaul plan, spearheaded by Justice Minister Yariv Levin, to weaken Israel’s judiciary in favor of the ruling political coalition.
The package of legislation introduced by Levin in January would give the coalition the power to override Supreme Court decisions, strike down laws and appoint justices. Opponents protesting the move charge the overhaul will severely damage Israel’s ability to call itself a liberal democracy and have brought millions of Israelis into the streets to protest against it.
The reasonableness amendment passed in the Knesset in July, 64-0, with opposition lawmakers ceremoniously walked out of the hall shouting “Shame!” refusing to dignify the law’s legitimacy by voting against it. As the vote took place, tens of thousands of protesters surrounded the Knesset.
This week, the much-awaited hearing of the formal petitions against the law will take place in what is known as the High Court of Justice, the official name for the Supreme Court when it sits to consider petitions that are not appeals of legal cases.
Normally, Israel’s attorney general would be expected to represent the government’s position in court.
But in this case, Israel’s Attorney General Gali Baharav-Miara has come out forcefully on the side of those challenging the Netanyahu government’s law, saying that “[F]or the first time in the history of the State of Israel, the authority of the Supreme Court to judge and grant relief to individuals and the public, based on its independent judicial judgment, has been stripped away.”
Eliminating the reasonableness clause places the Prime Minister and ministers “above the law,” Baharav-Miara wrote in a legal opinion, a status that contradicts the judiciary’s independence and its role in upholding justice. She came to the assessment that the judges “have no choice” but to annul the law.
Due to the sharp disagreement between the Attorney General and the Netanyahu government, the government will be represented in the hearing by Ilan Bombach, a private attorney, at the request of Justice Minister Levin.
Presiding over the hearing will be Supreme Court President Esther Hayut, a month before she retires from her post as required by law on her 70th birthday on October 16. Hayut, however, is permitted to issue opinions for three months following her retirement.
What does the ‘reasonableness standard’ mean?
The Supreme Court hearing focuses on petitions that challenge the July 24 law and thus protect what is called the ‘Reasonableness Standard.’ This standard allows Israel’s courts to invalidate any “extremely unreasonable” decision made by elected officials – government, prime minister, minister or lawmakers – including decisions on appointments and dismissals.
Abolishing this standard significantly reduces judicial review of the government and its officials, and makes it difficult for Supreme Court justices to intervene when elected officials make arbitrary, extreme or corrupt decisions.
Technically, the law is an amendment to 1984’s Basic Law on the Judiciary. It adds a paragraph to the Basic Law stating: “In spite of what is stated in this Basic Law, those holding judicial power by law, including the Supreme Court sitting as the High Court of Justice, shall not hear [a case] nor issue an order against the government, the prime minister or a government minister, on the reasonableness of their decision; in this section, ‘decision’ means any decision, including on appointments, or a decision to refrain from exercising authority.”
Who is challenging the Netanyahu government’s abolition of the reasonableness standard?
The multiple petitions challenging the reasonableness law to be heard Tuesday have been filed by a list of groups including the Israel Bar Association, the Movement for a Democratic Israel and the Movement for Quality Government, and the Association for Civil Rights in Israel. There are also petitions filed by groups of individual citizens, as well as the leading opposition party, Yesh Atid.
What do the petitions argue?
All of the petitions highlight three arguments challenging the legitimacy of the new law. Legal experts say the three points are considered to be the best legal arguments against the law because they rest on precedent: They have been used by by Israeli courts in the past, and are common arguments challenging changes to constitutions in other countries.
The key arguments are:
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Misuse of constitutional powers
This argument is based on the assumption that amendments to the Basic Laws must address broad legal issues such as government structure, protection of human rights and separation of powers between authorities. The amendments are supposed to be based on principles and represent permanent changes, not temporary tweaks in order to resolve a specific issue faced by a particular government.
If the Knesset exercises its inherent authority improperly and enacts laws that are considered “personal” or “retroactive,” the judiciary is authorized to intervene through what is known as the misuse of constitutional powers doctrine.
The underlying assumption in this argument is that the ruling coalition is attempting to change Basic Laws in order to accomplish specific goals that further its interests.
In the case of the Netanyahu government, one of those goals would be to fire Attorney General Gali Baharav-Miara – a repeated thorn in its side – and replace her with a more amenable legal head without having that decision overturned by the courts. Replacing Baharav-Miara could be seen as directly serving Netanyahu’s interests, given that he is currently a defendant in a criminal trial.
Another coalition goal the law serves would be allowing it to uphold the decision by Justice Minister Levin to indefinitely suspend convening the Judicial Appointments Committee until its composition is changed to his liking (he is attempting to achieve this through another law in the judicial overhaul). Without the law change, the court could declare such a move “unreasonable” and force him to do so.
The phrase in the law referring to “a decision to refrain from exercising authority” is believed to refer directly to the case of refusing to convene the appointments committee.
This argument was successfully used in May 2021 when the High Court ruled 6-3 that the Knesset had “misused” its power to change the Basic Laws in order to solve a political problem for narrow coalition needs when Netanyahu attempted, for political reasons, to change a budget arrangement that had been the basis for the formation of his government. The ruling said the Knesset had “bypassed” a permanent constitutional arrangement and “misused its constituent authority to change the Basic Laws.”
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Unconstitutional constitutional amendment’
This opaque phrase means simply that the Knesset’s attempt to change a Basic Law is, in and of itself, unconstitutional.
Several petitions against the law argue that eliminating the reasonableness standard severely harms separation of powers between the judiciary and elected government leaders. This means that the law puts Israel’s democratic character in danger. This argument is being made against the reasonableness law – but will likely also appear in challenges to all pieces of the judicial overhaul should they be passed by the Knesset.
This is the most straightforward challenge to the law and, in the opinion of Dr. Amir Fuchs of the Israel Democracy Institute, “represents the strongest argument: that the law goes against the core values of Israel as a Jewish and democratic state.”
Fuchs believes that “a probability exists that the court will rule that this is an unconstitutional constitutional amendment.”
He points to three elements of the law’s violation of “core values”: proper separation of powers; the rule of law; and free and fair elections.
The law clearly harms the separation of powers by eliminating a key power of the judiciary.
Regarding the rule of law, Fuchs notes that Supreme Court President Esther Hayut has explicitly stated that reasonableness is crucial when it comes to maintaining the rule of law within the government. “If we assume the reasonable standard is what protects the attorney general from being fired – certainly the government’s ability to fire the chief prosecutor and top legal adviser is a blow to the rule of law,” he says.
It is less obvious how reasonableness relates to free and fair elections, but Fuchs notes that all of Israel’s rules regarding the powers of caretaker governments between elections and the swearing-in of new governments “has come from the courts using the reasonableness standard. So, if you lose the reasonableness standard, you lose a free and fair election.”
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Flawed legislative process
Several of the petitions challenging the reasonableness law argue that it is illegitimate and should be nullified because of the violation of proper procedures leading up to its passage.
Legislation in the Knesset originates and is put forward in three forms: government bills, committee bills and private member bills.
The reasonableness bill was sponsored by the Knesset Constitution, Law and Justice Committee headed by Religious Zionism lawmaker Simcha Rothman. He is a fierce proponent of the judicial overhaul, which he helped design after spending much of his career lobbying for such changes. Rothman has been accused during committee deliberations on the reasonable law – along with other overhaul legislation – of bullying experts and opposition members, and rushing the laws forward without the due consideration and debate normally afforded such important legislation.
The strongest technical argument regarding flaws in the procedure is that Rothman used his chairmanship to initiate the bill through the committee. This is a rare route for legislation in Israel, bypassing the requirements of a government-initiated bill.
In fact, the bill was “essentially Rothman’s private bill and shouldn’t have originated in the committee in the first place,” explains Dr. Meital Pinto, a senior lecturer at Zefat Academic College and Ono Academic College. “But Rothman understood that a private member’s bill – as opposed to a committee-sponsored bill – requires much more time to pass, so he took advantage of his position as head of the constitutional committee in the Knesset and passed it quickly that way.”
State security and The Hague
An additional petition to be heard by the Court has been made by a military officer whose identity remains classified to protect his safety and does not focus on legal arguments but rather on security issues.
This petition raises concerns regarding the exposure of members of the security establishment to judgment by the International Criminal Court in The Hague and in foreign countries. Currently, the understanding that Israel enjoys a robust and independent judiciary has protected IDF officers from international prosecution. There are worries that if the courts are stripped of their power, such prosecutions will go forward.
The petition also argues that there were flaws in the legislative process ahead of the law’s passage after senior officials, including Prime Minister Benjamin Netanyahu, willfully avoided being briefed by top Israel Defense Forces officials to hear how it might damage state security, and the repeated refusal to convene the Knesset Foreign Affairs and Defense Committee. The petition asserts that, deliberately or not, the Knesset voted on the law without having relevant information on the implications for Israel’s national security.
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