All fifteen judges of the Supreme Court, sitting as the High Court of Justice, convened yesterday to hear petitions against the third amendment to the Basic Law: The Judiciary, an amendment better known as the law to abolish the reasonableness standard in judicial review of decisions by the government and government ministers.
The hearing was a historic one, not just because of the full panel of judges and the nature of the petitions, but also because of the issues that were raised and their centrality to Israeli public life, such as the status of the Declaration of Independence, the authority of the Knesset to create a constitution, and its ability to negate the character of the state as Jewish and democratic, as it is defined in the Declaration of Independence.
From yesterday’s proceedings, it is not possible to predict the outcome of the hearing. A ruling is due by mid-January at the latest, as the president of the Supreme Court Esther Hayut is due to retire on October 16 and Justice Anat Baron four days earlier, and justices have a maximum of three months from their retirement date to write their final decisions.
The hearing yesterday did provide some indication of the inclinations of the various judges. An aspect stressed by some, for example, was that, as agreed by the Knesset representative, government ministers still have a legal duty to act reasonably, but under the new amendment there is no enforcement of that duty. "There’s a law, but no judge," as some of them put it. The argument by the petitioners that the amendment denies citizens the ability to challenge decisions that affect them adversely in an unreasonable way also found agreement among at least some of the judges. They also expressed the concern that, if the Knesset could pass any law, then the current amendment might only be the harbinger of more far-reaching interference with basic constitutional rights.
On the other hand, doubt was expressed on whether the court could strike down a basic law, or whether such an extreme measure was warranted in this case. In any case, the fact that some judges expressed disquiet at the amendment does not necessarily mean that they will go so far as to overturn it.
Procedural matters also arose. The amendment was not given a preliminary reading in the Knesset. It was argued that this was not required, because it was introduced by the Knesset Constitution, Law and Justice Committee, but the question was raised whether this was the kind of bill that qualified for such an abbreviated procedure.
The possibilities for the outcome appear to be:
1. Outright dismissal of the petitions.
2. Striking down of the amendment altogether, either because of flaws in the procedure in the Knesset, or because of its content.
3. Striking down the amendment in part, such as the part that prevents the court from acting when the government fails to exercise its authority.
4. Constructive interpretation, such as determining that the amendment does not abolish the reasonableness standard altogether, but only reduces its scope to what it was before the court began to expand it in the 1980s, which the preamble to the amendment states is the background to it.
5. Deferment of the amendment’s effect by ruling that it should come into force only from the time of the next Knesset, on the grounds that when the government changes the rules of the game that apply to it, it is in a conflict of interests.
By mid-January, we shall know.
Published by Globes, Israel business news - en.globes.co.il - on September 13, 2023.
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