High Court sends a message to the government

High Court of Justice  credit: Reuben Castro, Walla! News
High Court of Justice credit: Reuben Castro, Walla! News

In restoring the reasonableness standard and finding that even basic laws can be struck down, the justices reminded the government that its power is not limitless.

Yesterday, eight out of fifteen justices of the Supreme Court (sitting as the High Court of Justice) brought about a historic decision: for the first time, a basic law has been struck down in Israel. But the great innovation in the decision to strike down the amendment that abolished the reasonableness standard in judicial review of decisions by the government and government ministers, is that a broad majority, twelve out of the fifteen justices, found that a basic law could be struck down if it undermined the foundational principles of the country as a Jewish and democratic state.

In effect, the reform that Minister of Justice Yariv Levin sought to promote in order to weaken the power of the Supreme Court has led to it becoming stronger. He succeeded in completing only the first of four stages of the planned reform, the one originally thought of as the most moderate. The full plan included changes in the make-up of the judicial selection committee, and enabling the Knesset to override Supreme Court decisions.

Yesterday’s precedent-setting decision anchors the Supreme Court’s power to intervene in Knesset legislation, including in laws designated as basic laws. The judges considered conservative in their approach who were in the minority on the decision on the specific amendment but who nevertheless supported this position were Yael Willner, Gila Canfy-Steinitz, Alex Stein, and Yechiel Kasher.

Stein set out an in-depth analysis of the court’s powers and the status of the Declaration of Independence in relation to the Knesset. He came to the conclusion that any legislation, even if it bears the title of "Basic Law", is subject to the limits implied by the Declaration of Independence, and if it transgresses those limits, it has no legal validity. This one of the most important messages that the ruling carries for the government that controls the Knesset: the use of your power is restricted to the principles of the Declaration of Independence.

Even Yosef Elron, who was not among the twelve judges, stated that, as a last resort, and in extreme and exceptional cases, a basic law could be struck down.

Two judges adopted an unequivocal stance that there was no room for such intervention: David Mintz and Noam Sohlberg. Mintz called it "a move that undermines the legitimacy that this court has acquired."

The second important point is that, as a result of the amendment being struck down, the reasonableness standard will continue to apply, and decisions by the government and by ministers will be subject to judicial review on the grounds that they are unreasonable. In a democratic country like Israel that lacks constitutional checks and balances, the reasonableness standard is critical.

In this respect, the court’s ruling is less consensual, but eleven judges did not accept the idea at the root of the amendment promoted by the minister of justice and by the chairperson of the Knesset Constitution, Law and Justice Committee MK Simcha Rothman, namely that there could be no court intervention whatsoever in government and ministerial decisions on the grounds of extreme unreasonableness. Willner and Canfy-Steinitz held that wholesale abolition of the reasonableness standard was highly problematic, and their position was that the amendment should be upheld in a reduced way.

The majority on the court ruled that abolition of the standard injured core democratic values, the separation of powers, the right of access to the courts, and the rule of law. The judges said that it would "substantially reinforce the considerable power in any case concentrated in the hands of the government and ministers, and block the ability of an individual to obtain aid in many situations in which interests of importance to him were likely to be harmed as a result of acts by the government." Justice Yitzhak Amit described the reasonableness standard as "a quality standard, a kind of ISO 9001 for the decision making process: examination of all the relevant considerations, exclusion of irrelevant considerations, gathering of relevant data to create a factual basis, balancing of the various considerations, and making a rational decision within a reasonable time." 

Both parts of the ruling, the support for the Supreme Court’s power to strike down basic laws, and the restoration of the reasonableness standard, send a message to the government: your authority is not limitless.

Published by Globes, Israel business news - en.globes.co.il - on January 2, 2024.

© Copyright of Globes Publisher Itonut (1983) Ltd., 2024.

High Court of Justice  credit: Reuben Castro, Walla! News
High Court of Justice credit: Reuben Castro, Walla! News
Rooftop solar panels credit: Shutterstock Does it pay for homes to install rooftop solar panels?

As the Israeli government steps up efforts to encourage homeowners to produce their own electricity from rooftop panels, "Globes" investigates the advantages and pitfalls.

Dop Elbit banner at London's Allianz HQ credit: Reuters PA Images Violence against Israeli defense cos in UK escalates

"The Sunday Times" has investigated Palestine Action, a radical left-wing group that targets Israeli defense companies, their subsidiaries, and corporations and banks with any connection to Israel.

UnitedHealth founder Richard Burke credit: Ken Easley UnitedHealth founder: US health system is broken

In an exclusive interview Richard Burke talks about the murder of the company's CEO, Donald Trump, his love for Israel, and investment in Israeli startup Korro AI.

Left to right: Karin Goldberg, Einav Laser, Dr. Arseniy Lobov, Dr. Paola Antonello, Dr. Merav Shmueli, and Prof. Yifat Merbl (center in black)  credit: Weizmann Institute Israeli scientists' discovery could lead to new antibiotics

Prof. Yifat Merbl of the Weizmann Institute and her team have found a natural source of anti-microbial substances in the "garbage can" of human cells.

Peter Kash credit: personal photograph Peter Kash confident about cancer cure breakthrough

In Israel for IATI's MIXiii International Life Science and Health-Tech week, the US investor talks about his life science portfolio and the opportunities Israel must seize.

Jared Kushner and Ivanka Trump visit Kfar Aza, December 2023   credit:  Noam Moskowitz, Knesset Spokesperson's Office Jared Kushner builds a Middle East business empire

Now the largest shareholder in Israeli financial group The Phoenix Holdings, Kushner, who was instrumental in forging the Abraham Accords, has financial ties spanning regional friends and foes.

Nir Zuk credit: Inbal Marmari Nir Zuk fears mass exodus of talent from Israel

Despite his concerns, the Israeli tech billionaire, who founded Palo Alto Networks, today worth $125 billion, remains optimistic and talks about his investments in Air Haifa, digital bank Esh, and fintech startup Finq.

Family businesses credit Shutterstock Why are family businesses more immune to crises?

Devin DeCiantis and Ivan Lansberg of international family business consulting firm LGA, address this issue in their recently published book "The Enduring Enterprise."

Council workers removed antisemitic slurs graffitied onto garage doors and cars in Sydney credit: Reuters/Biance De MarchiI Trouble in Australian Jewish paradise

Australian Jewish community leaders explain the unnerving spate of anti-Semitic incidents in a country so long seen as a safe refuge.

AI credit: Shutterstock As AI kicks in graduates struggle to find tech jobs

Tech companies in Israel have cut back on hiring juniors, as AI is already quicker, cheaper and more accurate in writing code, than computer science graduates.

Ben Gurion airport credit: Tali Bogdanovsky War tensions accelerate Israel's Arab brain drain

Since October 7th, discrimination and alienation are driving more and more Israeli Arabs to emigrate. "Globes" talks to some who have decided to leave.

Intel plant in Kiryat Gat credit:  Intel Intel Israel fate unclear amid TSMC, Broadcom sale talks

"Globes" considers the options for Intel Israel's 9,500 employees if the ailing chip giant is broken up and sold.

BIG Glilot credit: Tel Aviv online BIG Glilot - Israel's biggest shopping center set to open

The shopping center will send shockwaves throughout the retail sector in Tel Aviv and the Sharon region and could put some of the area's malls out of business.

Assaf Rappaport, Gil Shwed and Nadav Zafrir Can Check Point shake off its conservative ways?

The strategic partnership with Wiz is the first major decision by CEO Nadav Zafrir, after 30 years of Gil Shwed's cautious management.

Fintech Photo: Shutterstock Israeli fintech firm valuations plunge despite strong growth

"Globes" examines why Rapyd, Melio and eToro have halved their valuations, even though revenue and profitability are growing.

ERLOS plant in Germany credit: Peter Fenes EV battery recycling plant to open in Israel

Car importer Colmobil is leading the consortium building the plant based on German technology.

Twitter Facebook Linkedin RSS Newsletters גלובס Israel Business Conference 2018