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
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