A First: Israeli High Court strikes down amendment to Basic Law

In addition, 12 out of 15 judges ruled in favor of the right of the High Court to conduct a review of Basic Laws.

By Vered Weiss, World Israel News

The Israeli Supreme Court struck down the an amendment to Israel’s Basic Law  Monday night, nullifying limits to the reasonableness standard.

In addition, 12 out of 15 judges ruled in favor of the right of the High Court to conduct a review of Basic Laws and to intervene in exceptional cases in which the court believes the Knesset has overstepped its authority.

Monday’s ruling marks the first time in the history of Israel that the Supreme Court has struck down part of a Basic Law, the country’s proto-constitution.

The Knesset, as Israel’s constitutional assembly, has hitherto exercised the exclusive right to draft and amend Basic Laws; a power granted it in the Israeli Declaration of Independence.

In its decision Monday night, the court struck down the amendment to the Basic Law: The Judiciary, which was passed by the Knesset in its final reading on July 24th.

Known as the “Deri Law,” the amendment limited the ability of courts to invoke the “reasonableness standard” to overrule government decisions and laws.

The reasonableness standard, which was never passed into Israeli law, has been used by the Israeli judiciary in recent years to expand the discretion of courts in overturning laws and government actions judges determine to be “unreasonable,” even without violating statutes.

The amendment was passed in response to the Supreme Court’s striking down of the appointment of Shas chief Aryeh Deri to the Netanyahu government, citing his past convictions in their determination that his appointment was “unreasonable.”

Judges who supported the repeal of the limits to the reasonableness standard were: Esther Hayut, Yitzhak Amit, Anat Baron, Ofer Grosskopf, Uzi Fogelman, Dafna Barak Erez, Khaled Kabob, and Ruth Ronen.

Judges who opposed the move included justices Yechiel Kasher, Noam Sohlberg, Yosef Elron, Alex Stein, Yael Willner, David Mintz, and Gila Kanfei Steinitz.

The majority opinion determined that the limits on the reasonableness standard would cause “unprecedented damage to two of the foundational characteristics of the State of Israel as a democratic state – the principle of separation of powers and the principle of the rule of law.”

Esther Hayut wrote, “The Knesset’s authority in its capacity as a constituent authority is not unlimited, and it is not authorized to enact a Basic Law that denies or directly contradicts the characteristics of Israel’s nuclear identity as a Jewish and democratic state.”

Hayut added, “This conclusion is drawn from the constitutional data as they have developed since the early days of the state.”

Judge Yael Willner said she voted against overruling the the amendment  because she thought the measure should have been given a sustainable interpretation instead of striking it down. 

Justices Stein and Kanfi-Steinitz also agreed that the amendment should not have been struck down because they intended a narrow interpretation. 

Judge Elron argued that the amendment should not have been struck down because there was no reason to assume it would have had the severe effects claimed by the majority since no interpretation of the amendment had yet been enacted.

Justices Solberg and Mintz disagreed with the majority’s position regarding the Court’s authority in principle to conduct judicial review of the Basic Laws and even the authority to decide on this position because they argue no source gives the court the authority for such a review. 

Last Wednesday, it was leaked on N12  that the amendment was likely to be defeated by a narrow margin in the first-ever leak of a draft verdict from the High Court through the media.

It was reported that judges published the verdict to avoid further leaks and in response to a proposal in the Knesset to delay the decision until after the war.

Responding to criticism about the timing of the decision during the Israel-Hamas war, Judge Hayut responded, “About a month after the hearing on the petitions took place, we were moved by a brutal terrorist attack and since then the State of Israel has been engaged in a difficult and determined war against the terrorist organizations that seek to destroy us.” 

She added, “Even at this difficult time, the court must fulfill its role and decide the issues brought before it, and even more so when it comes to issues relating to the foundational characteristics of Israel’s identity as a Jewish and democratic state.”

Justice Minister Yariv Levin, an architect of the judicial overhaul, was highly critical of the timing of the decision.

“The Supreme Court justices’ decision to issue the ruling during a war is the opposite of the spirit of unity required these days for the success of our fighters on the front.”

Further, Levin said that he felt the High Court was overstepping its bounds and  added, “A situation in which it is impossible to enact even a Basic Law or make any decision in the Knesset and the government without the consent of the High Court takes away from millions of citizens their voice and the basic right to participate equally in decision-making.”

High Court of JusticeJudicial reformreasonableness clause