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Israel-Palestine-Jordan

In historic ruling, Israel’s High Court strikes down key judicial overhaul legislation

2024-01-02

[IsraelTimes] In 8 vs 7 decision, justices rule that reasonableness law undermines Israel’s democratic character; 13 justices assert court’s right in principle to strike down Basic Laws.

In a deeply controversial landmark decision, the High Court of Justice struck down the government’s reasonableness limitation law on Monday, annulling for the first time in the country’s history one of its quasi-constitutional Basic Laws.

The court split almost down middle over the highly contentious legislation, the only law from the government’s polarizing judicial overhaul package to have been passed, with eight justices ruling to strike down the law and seven to uphold it.

But fully 13 out of the full 15-justice panel that heard the case wrote in their opinions that the court did have the authority to review Basic Laws. And of the five justices who asserted this right but declined to strike down the reasonableness law, three expressed deep concern over the legislation and wrote that it should be interpreted in a narrow manner to preserve aspects of the reasonableness standard.

In what is perhaps the most significant outcome of the decision, the court fully actualized in legal precedent the argument made in previous rulings by former Supreme Court justice Esther Hayut that it does have, in limited circumstances, the right to annul Basic Laws if they undermine the key characteristics of the State of Israel as a Jewish and a democratic country.

The ruling marks the culmination of a year-long battle between the government and the judiciary over the nature of Israel’s democracy, and the question of which branch of government has ultimate say over its constitutional character.

The reasonableness limitation law was advanced after the government backed down from far-reaching and extreme judicial overhaul legislation that many legal scholars said would have severely if not mortally damaged Israel’s democracy, including laws that would have given the ruling coalition near-total control over almost all judicial appointments, and which would have almost totally annulled judicial review over Knesset legislation.

Instead, the current high court members have significant say over appointments, which has caused the court to move ever further left over the decades.

This, said Hayut, "does the most severe harm possible to the principle of the separation of powers and the principle of the rule of law," which constitutes "a severe blow to two of the most explicit characteristics of Israel as a democratic state."

As such, the law must be annulled, she wrote.

Justice David Mintz, in an opinion for the minority, slammed Hayut’s ruling, describing her doctrine of the unconstitutional constitutional amendment as "something out of nothing," which "undermines basic democratic principles including the separation of powers."

Mintz, a strongly conservative justice, contended that the court’s ability to review and strike down even regular legislation was "not based on strong foundations" and said that as such there was "for sure no authority allowing for the court to deliberate on the validity of a Basic Law" or to strike one down.

"Annulling a Basic Law based on an amorphous doctrine and an undefined formula carries a heavy price from a democratic point of view, certainly when it comes to an issue about which the court itself is in an ’institutional conflict of interest,’" wrote Mintz.

He argued further that the law does not prevent the court from reviewing government and ministerial decisions with other judicial doctrines, and "does not give them [the government] complete and total discretion, and does not grant immunity for their decisions."

Justice Yael Wilner, a more moderate conservative figure than Mintz, adopted a more nuanced position, and wrote that the High Court does have the right to review, and, in extreme cases, strike down Basic Laws, while also expressing concern about the reasonableness limitation law.

Unlike Hayut and other liberal justices, Wilner based this authority not on the Declaration of Independence, but on Basic Law: The Judiciary, which empowers the court to give legal relief "for the sake of justice."

As such, she wrote that the doctrine of "existing interpretation" should be used to interpret the law more narrowly and allow for the reasonableness standard to be used in cases where an administrative decision is extremely unreasonable, but allow the law to stand for cases where that is not the case.

"Given the aforementioned interpretation, the amendment does not seriously harm the democratic identity of the State of Israel... in light of the fact that the amendment does not detract from the duty of the government and the ministers to act legally; and does not prevent effective judicial review, given the existence of additional grounds for judicial review," she said.

Wilner wrote that although the law would mean that there are cases when there could be no judicial remedy for an apparent injustice done by an administrative decision, such decisions would still have to be taken in accordance with judicial standards of legitimate authority, valid administrative process, good faith, non-pertinent considerations, proportionality, arbitrariness, and discrimination.

Justices Alex Stein and Gila Canfy Steinitz made similar arguments in their written opinions, upholding the right of the court to strike down Basic Laws, and voicing concern over the reasonableness law, but ruling to more narrowly interpret that law so as not to strike it down in its entirety.

Justices Hayut (ret), Acting Supreme Court President Uzi Vogelman, Isaac Amit, Daphne Barak-Erez, Anat Baron (ret), Ofer Grosskopf, Chaled Kabub, and Ruth Ronnen ruled to strike down the reasonableness law.

Wilner, Stein, Steinitz, and Yechiel Kasher all wrote that although they opposed annulling the reasonableness law, the court did have the right to review and strike down Basic Laws, while Yosef Elron concurred that the court should not strike down the reasonableness standard, but wrote more circumspectly that the High Court could strike down a Basic Law only in extreme situations in which fundamental individual rights are harmed, and as a last resort.

Only Mintz and fellow conservative Noam Sohlberg argued that the High Court had no authority whatsoever to annul Basic Laws.

More from the Times of Israel:

Although, in some cases, the losing party in a High Court decision can request a new hearing with a larger panel of justices, in this case all 15 justices of the court heard the petitions against the law, so there is no prospect for another hearing.

In theory, the government could re-legislate the law in the knowledge that the decision to strike down the legislation was 8 to 7 and that two of the justices who ruled in the majority — former Supreme Court president Esther Hayut and Justice Anat Baron — have now retired. This means there is now a majority against striking down the law, but it seems doubtful that the government would want to adopt such a divisive and controversial process, at least now, during perhaps the worst security crisis Israel has faced in half a century.

The government could also in theory say it does not view the decision as valid and that, should the court reverse a government or ministerial decision based on the reasonableness standard, it would not respect such a ruling. Such a step would create an unprecedented constitutional crisis where the institutions of state would not know who to obey — the government or the court. But creating such constitutional chaos, certainly during the current war, would be an extreme reaction.

IDF spokesman says societal rift may have played part in Hamas decision to attack

No doubt. But up until now it was verboten to say so in public, lest those who most deserved it feel accused of causing Hamas to run amok, mostly over them.

IDF Spokesman Rear Adm. Daniel Hagari says the Hamas
Hamas

...not a terrorist organization, even though it kidnaps people, holds hostages, and tries to negotiate by executing them,...
terror group may have launched its onslaught on October 7 partially due to its belief that Israeli society was in chaos, due to the controversial judicial overhaul.

"These things will become clear in the in-depth investigation that we will carry out, but the answer is that it is likely that the characteristic of a rift [in society], the readiness of the army, perhaps in [Hamas’s] perception, was one of the characteristics" the terror group took into account, Hagari says in response to a question at a presser.
The insistence of air force pilots, and other military groups to publicly proclaim their refusal to fight if ordered by a Netanyahu government might possibly have something to do with Hamas’s perception. The pilots, et al, were repeatedly warned that this was a risk, but they insisted on persisting, encouraged by their American donors. No doubt Hamas would have broken out anyway — the IRGC had trained them for it for two years, after all, but perhaps not on that particular day.
"I think that now in the fighting... [Hamas] is meeting a determined, functioning army," he says.

Movement for Quality Government hails ‘tremendous public victory’ after court ruling

Posted by:trailing wife

#1 Supreme Court of Justice has been abusing its authority - following the trends of "Western" jurisprudence.

Posted by: Grom the Reflective 2024-01-02 03:36

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