Attorney General Gali Baharav-Miara made an unprecedented call on Sunday for the High Court of Justice to invalidate a government law that restricts judicial review in Israel. This move is notable as the court has previously avoided revoking amendments to the country’s quasi-constitutional Basic Laws. In response to petitions against the legislation, the attorney general argued that the “reasonableness” standard, which allows the courts to assess government and ministerial actions, is a crucial element of Israel’s democracy and system of checks and balances.
Baharav-Miara contended that eliminating this standard undermines Israel’s identity as a democratic nation and justifies the court’s intervention to strike down the law. It’s important to note that the attorney general has not supported the government’s position on this legislation, causing tension between her and the government, with some ministers calling for her removal.
The law in question is part of the government’s broader judicial overhaul program and has faced significant opposition from protest groups and opposition parties. It prevents the High Court from using the reasonableness standard to annul government decisions based on their perceived unreasonableness. Supporters argue it prevents the unelected court from imposing its worldview on the government, while critics claim it hinders the court’s ability to review government actions that could harm key law enforcement officials’ independence, election legitimacy, and individual rights.
In her submission to the court, the attorney general emphasized the importance of the reasonableness standard in preserving the rule of law, protecting the independence of senior civil service officials, and ensuring fair elections. She argued that the government’s law grants it excessive discretion without effective judicial oversight, endangering democratic principles. Baharav-Miara acknowledged that striking down a Basic Law is a complex matter but insisted that the legislation violated fundamental democratic principles, including the separation of powers and core human rights.
She also criticized the law as a misuse of constituent power by the current government, giving it more power while weakening the court’s ability to exercise judicial review. She concluded by suggesting that the law should be considered null and void.