After more than 13 hours, the 15-judge panel at the High Court’s preliminary hearing on Tuesday of petitions against the reasonability amendment to the Basic Law: The Judiciary, there’s no doubt that the majority of judges, including Judge Noam Solberg whose writings formed the foundation for the amendment, thought it was a badly written law impacted by an unreasonable assertion that government actions may not ever be criticized by the courts. It could have been written more eloquently, and include obvious cases where the court should still be permitted to go after extremely unreasonable acts of government.
The court is split between liberal and conservative judges on the very idea of touching a basic law, which until Tuesday morning had not been done since the establishment of the Israel Supreme Court 75 years ago.
For the longest time, both Justice Minister Yariv Levin and Constitution Committee Chairman Simcha Rothman were considering not appearing or sending their representatives to appear in Tuesday’s session which they considered an illegitimate affront to the separation of the branches of government. In a democracy, the court decides the validity of a law based on its compliance with the constitution, or, in Israel’s case, constitutional basic laws. But the court may not decide the validity of basic laws, that is strictly the purview of the legislator.
In the end, the government, as well as Rothman, opted to appear before the court, although all the respondents, including the Knesset Counsel, reminded the court time and again that it had no business invading legislator territory.
The judges’ reluctance to go near this particular basic law amendment was most evident during the presentation of the Chairperson of the Movement for Quality Government in Israel Eliad Shraga, representing his group’s petition.
Attorney Shraga argued that should the courts be deprived of the power to declare government action extremely unreasonable, then extremist government ministers such as Bezalel Smotrich and Itamar Ben Gvir could roam free, applying their unchecked powers to oppressed populations everywhere.
Justice Esther Hayut, the court president, considered one of the court’s top three liberal activists, didn’t like this argument at all, telling Shraga the amendment couldn’t be invalidated based on statements by ministers of laws they intend to promote, “based on what we hear they are planning to do.”
Judge Alex Stein, one of the more extremely conservative members of the court, commented: “I turned and turned and did not find any attempt at an unconstitutional act. Everything you say has not been done.”
Shraga summed up his argument, saying: “The amendment cancels the obligation of reasonableness on the part of the elected echelon. No enforcement means ‘the king can do no evil.’”
This was promptly challenged by Justice Solberg who retorted: “You want to rely on the Declaration of Independence to invalidate the Basic Law; please, show me where in the text of the Declaration of Independence did you find a mention of the borders between the branches of government.”
There aren’t, of course. The Declaration does not mention courts or justices, it also does not mention the term “democracy” for that matter.
Someone in the Likud Party issued this combative statement in the middle of the court’s proceedings: “The most important element in democracy is that the people are the sovereign. The Knesset receives its authority from the people. The government receives its authority from the Knesset, and the court receives its authority from the basic laws enacted by the Knesset. […] “If the court can cancel basic laws, it turns itself into the sovereign instead of the people. This extreme step will undermine the foundation of democracy. This is a red line that must not be crossed.”
According to several interpretations by court watchers, Justice Hayut is not prepared to revoke the reasonability amendment without a resounding majority of the justices. Touching a constitutional law is a doomsday weapon par excellence, and you don’t use it if you’re going to end up with a win or a loss of 8 to 7. That’s not the legacy she wishes to leave behind, no matter how angry and elitist and patronizing she may be – especially since the Knesset can turn around and rewrite the amendment, and when it is challenged next, two liberal judges will have been whisked away to retirement.
The most likely outcome was suggested by Justice Stein, who favors submitting a restrictive interpretation of the restrictive amendment, which would bring back the limited power of the court to challenge government actions only when they are clearly and extremely unreasonable.
This solves the issue of the court revoking a basic law––it won’t revoke, only interpret––and also offers a much-needed nuance to a badly written law.
The justices will be assembled ahead of Hayut’s retirement on October 17. She will then share her opinion and each judge will announce whether or not they support it. The majority opinion will be released a few months later, most likely next January.
If Levin, Rothman, et al are smart, they should quickly amend the reasonability amendment to include extreme “murder and take possession” (I Kings 21:19) cases of government inequity, so that by the time the court issues its opinion the problem will have been gone.
