In a dramatic Knesset vote last week, Israel’s Basic Law on the Judiciary was amended. The change 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.”
Tens of thousands of protesters surrounded the Knesset as the vote took place on July 24, with the bill passing 64-0 as opposition lawmakers ceremoniously walked out of the hall shouting “Shame!” They refused to vote on the measure that tilts the balance of powers in laws which represent the closest thing Israel has to a constitution.
The amendment was the opening shot in the Netanyahu government’s comprehensive plan, spearheaded by Justice Minister Yariv Levin, to weaken Israel’s judiciary in favor of its political leadership. According to opponents, the overhaul will severely damage Israel’s ability to call itself a liberal democracy.
In the following week, various different groups filed petitions challenging the legislation in 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).
The hearing, now set for September 12, will be unprecedented in that the panel will include 15 justices, or the entire Supreme Court (usually the panels are composed of between three to 11 justices). The entire court was impaneled once before, but at that time the top court was only composed of nine justices.
The decision to include the entire court reflects the importance – and the legal and political difficulty – of the fact that the judiciary will essentially be deciding whether or not to limit its own authority.
Who are the petitioners?
So far, at least seven petitions have been filed challenging the reasonableness law and additional petitions are being prepared. The most prominent thus far are from the Israel Bar Association, the Movement for a Democratic Israel and the Movement for Quality Government. Another in the works will come from the Association for Civil Rights in Israel. Other petitions have been filed by groups of individual citizens: one such group includes former Labor lawmakers Stav Shaffir and Tal Rousso.
One petition represents 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, Israel’s robust judiciary has protected military officers from international prosecution. There are deep 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 the Knesset voted on the law without having relevant information on the security implications.
Another petition was filed by Yesh Atid on Wednesday, after the opposition party’s leader, Yair Lapid, vowed to do so last week.
What does the law they are challenging contain?
The reasonableness law dictates that courts will not be allowed to invalidate on these grounds any decision made by elected officials – government, prime minister, mayor, 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.”
What are the strongest and most frequently cited arguments included in the petitions challenging the law?
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 have been used and referred to by Israeli courts in the past, and are common arguments challenging changes to constitutions in other countries. They are:
- 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.”
- ‘Unconstitutional constitutional amendment’
This rather confusing 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.”
- Flawed legislative process
Several 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.”
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