Petitioners say reasonableness law attempt to ‘ruin Israel’s democracy’

Dr. Eliad Shraga, head of the Movement for Quality Government in Israel, opened the arguments of the petitioners against the reasonableness law on Tuesday, presenting the legislation as part of a broader agenda.

The agenda of the government, including the judicial reform, was to ruin the democratic system of Israel with laws like the police law and the laws that sought to allows Shas Chairman Arye Deri to be appointed minister despite his past criminal convictions.

Justice Noam Sohlberg asked for specific examples of how the laws disrupted Israel’s democratic system. Court President Esther Hayut said that they were reviewing a specific law.

“You can’t ignore the broader picture,” said Shraga. “The story is that they want to ruin the judicial system.

 The High Court hearing of the government's judicial reform reasonableness bill on September 12, 2023 (credit: YONATAN SINDEL/FLASH90)
The High Court hearing of the government’s judicial reform reasonableness bill on September 12, 2023 (credit: YONATAN SINDEL/FLASH90)

The power of the Knesset as a constituent authority was traced by Shraga back to the Declaration of Independence. He argued that while others were speaking to the right of the court to strike down basic laws, he said that he was arguing that the authority of the Knesset to pass basic laws violating Israel’s democratic principles had to be questioned.

Shraga finished his petition with an appeal for the court to issue a verdict as soon as possible.

“We’ll write it tonight,” Amit said sarcastically.

Knesset abused its authority with reasonableness law

The Knesset abused its constituent authority by passing the reasonableness standard law to prevent the convening of the Judicial Selection Committee, attorney Chagi Kalai argued to the High Court of Justice on Tuesday.

A hearing on the Judicial Selection Committee is scheduled for September 19 for petitions demanding that the government assemble the panel and begin appointing justices. Justice Minister Yariv Levin has refused to convene the committee until it has been reformed. The matter is an administrative decision, which would have made applications of reasonableness standard applicable prior to the passing of the law restricting it on July 24. 

Kalai, representing a petition put forward by 44 people, told the court that the law was unsuitable as a quasi-constitutional basic law because of this immediate political purpose.

Kalai also argued that the institution of basic laws was abused to protect the law from judicial review. 

Court President Esther Hayut dismissed this reasoning, saying it didn’t prevent the court from accepting petitions.

The Knesset is abusing the constitutional processes to pass basic laws amendments like the reasonableness standard law, attorney Gilad Barnes argued to the High Court of Justice on Tuesday on behalf of Darkenu.

Barnea said that during the hearings on Tuesday calling for the striking of the reasonableness standard, they constantly ran up against the issue that Israel’s constitution is not complete.

The Knesset is not completing the constitution and using it to pass laws. Instead of closing the document, in recent years it has been adding sections that throw off the balance of power.

The Knesset refused to provide the proper legal tools to the court, explained Barnea, to limit it.

Israel was the only country with an ongoing constitution process, making comparisons to other countries and their approach to reasonableness or judicial review difficult.

Amit said that the lack of a constitution would mean expanded review.

Barnes asked why there wouldn’t be a referendum for laws that alter the country so fundamentally.

Attorney Gilad Sher, representing the Civil Democratic Movement in the same petition, claimed that the reasonableness standard law was part of a package of 225 coup d’etat laws.  

Hayut criticized his argument as holding that “if you don’t do as we say, the sky will fall.”

Nadav Weisman, representing the Israel Bar Association, argued that reasonableness was an invaluable tool used to ensure that the government’s actions were legal.

While there could be other legal tools created, reasonableness was a wide-ranging measure that allowed citizens to seek the aid of the court. 

Judicial review, Weisman said, applies to all of the government branches to hold them in check, not just select parts.

The reasonableness standard law immunizes ministerial decisions from court review, but ministers can engage in a large number of decisions throughout their ministries and civil services.

A petition on how the reasonableness standard law would impact soldiers and officials on the international stage was presented on behalf of senior officers on Tuesday.

It was argued that soldiers could be brought before international legal forums under allegations of war crimes. 

The basic law amendment would reduce the independence of the court, leading bodies like the International Criminal Court not to defer to the local judiciaries.

Dozens of human rights organizations stated as amicus curiae that the reasonableness standard law would harm human rights in Israel.

The friends of the court contended that the attorney for the government Ilan Bombach was incorrect that human rights were not being impacted by the law.

It was argued that unreasonable appointments to civil service positions could allow mistreatment of minorities. 

The reasonableness standard, they said, allowed consideration of human rights at every level of government decision.

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