As many of you may be aware, there is a major, landmark Supreme Court case set to be heard in Israel tomorrow, discussing the legality of the recently-passed judicial reform legislation that restricted the Supreme Court’s use of the legal doctrine known as the “Reasonableness Clause.” For the first time in the country’s history, all 15 Supreme Court judges will hear the case.
The “Reasonableness Clause,” adopted by the Supreme Court in the mid-1990s, allows the Court to overturn decisions of the government that it feels are “extremely unreasonable.” Some in government felt that the clause gave too much power to the courts, allowing them too much authority to overturn decisions made by the democratically elected Knesset and Government. As a result, in a highly controversial measure in July of this year, the Knesset passed a law limiting the Supreme Court’s use of this doctrine. In doing so, the power of the Government was strengthened and the power of the courts greatly reduced. Significantly, the new law was an amendment to Israel’s quasi-Constitutional Basic Laws. (In place of a formal constitution, Israel relies on a group of “super-laws” known as Basic Laws). For more details about the new law, see Jewish Federation’s earlier update here.
Tomorrow’s hearing is in response to petitions against the new law submitted by the Leader of the Opposition Yair Lapid and numerous civil society organizations. (See more on Lapid’s arguments here). In this case, the Court is being asked to overturn the new law at the very time when the power of the Court to overturn legislation is itself being debated and other laws are being proposed to further restrict the Court’s activity. Importantly, in this particular case, the Court is being asked to overturn an amendment to a Basic Law, something the Court has never previously done (although in previous cases, judges have said that in theory the Court does have the power to overturn Basic Laws).
Those arguing for the Court to cancel the legislation contend, among other points, that the law goes against the foundational democracy of the state and eliminates a critical check on the government’s power and authority, without providing an alternative that could otherwise mitigate government overreach. They also challenge the process by which the new legislation was passed Against this, others argue that the Knesset, representing the wishes of the people, must remain supreme, and also that the Basic Laws are essentially Israel’s Constitution, and thus remain above the Court’s jurisdiction. See more on the various arguments here.
A number of government ministers, coalition members of Knesset, and most significantly, the Likud Speaker of the Knesset Amir Ohana, have said that it would be illegal and unconstitutional for the Supreme Court to overturn a clause of a Basic Law, and that the Government would not be obliged to adhere to such a decision, which they claim is unconstitutional and illegitimate. Clearly, if this situation were to eventuate, it would trigger an unprecedented constitutional crisis.
A number of other coalition members, including Defense Minister Yoav Gallant have said that while they feel that the Supreme Court does not have the authority to rule against the new law, they would respect the Court’s decision. The majority of coalition ministers, including Prime Minister Benjamin Netanyahu himself, have not publicly committed to accepting the Court’s decision, nor have they said that they would refuse to obey it.
A major concern in the event of a constitutional crisis relates to reporting lines for Israel’s military and security apparatus. Around the time of the Knesset’s vote to repeal the reasonableness standard, some 230 pilots and navigators stopped reporting to their reserve duty, according to Ha’aretz, a significant proportion of the air force’s staff. Many remain fearful that this situation could further deteriorate in the face of a real constitutional stand-off, with unprecedented consequences for Israel’s security. See more here.
In response to the impending hearing, the anti-judicial reforms protests have been ratcheted up significantly with tens of thousands taking to the streets to protest (see more here) while thousands of pro-reformers demonstrated outside the Supreme Court under the banner “Don’t Cancel Our Votes.” See more here.
According to one respected Hebrew-language news site (Walla), Prime Minister Netanyahu may reveal a compromise agreement later today that includes a draft law which would significantly limit the use of reasonableness for judicial overview, but would anchor “capriciousness and arbitrariness clauses” that would give the court the ability to continue to supervise the government from a different angle. The reasonableness standard would once again be able to be used during election periods as it was before, according to the proposal. See more on compromise proposals here.
No decision by the Court is expected tomorrow, but will likely come a few weeks later, However questions and comments by the judges during the hearing may begin to give some indication as to the direction the Court will take. In another unusual move, due to the highly significant nature of the hearing, proceedings will be broadcast live.
Jewish Federations of North America are monitoring the situation very closely and will update as needed.
- In a landmark case, Israel’s Supreme Court will hear arguments over the legislation recently passed by the Knesset as an amendment to a quasi-constitutional “Basic Law” to restrict the Supreme Court’s use of the so-called “reasonableness clause” to overturn legislation and government decisions. The Court’s ruling is not expected for a few weeks.
- The Court is being asked to overturn an amendment to a Basic Law at the very time when the power of the Court to overturn legislation is itself being debated and other laws are being proposed to further restrict the Court’s activity.
- A number of key ministers and coalition members have said it would be illegal for the Supreme Court to overturn a clause of a Basic Law, and that the Government would not be obliged to adhere to such a decision.
- That clash could trigger an unprecedented constitutional crisis.
Rebecca Caspi is senior vice president for Israel and overseas and director general of the Israel office at JFNA.
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