The upcoming High Court of Justice hearing on Tuesday regarding challenges to the coalition’s “reasonableness” law is poised to be a momentous confrontation between the state’s governing bodies, unlike anything witnessed in the country’s history.
On one side, government watchdogs and civil society organizations will argue that the Basic Law amendment passed in July, which limits the court’s authority to assess government decisions based on a reasonableness doctrine, poses a significant threat to Israel’s democracy.
On the other side, the government will assert that no such threat exists and that the court lacks the jurisdiction to review quasi-constitutional Basic Laws.
In the midst of this clash, the court, which has previously upheld its right to review Basic Laws under specific conditions, must determine whether the provisions of the reasonableness law warrant the use of the extraordinary measure of nullifying legislation of a constitutional nature.
This historic confrontation will be exemplified by the gathering of all 15 justices of the High Court, marking the first time such a large panel has been convened.
The reasonableness law, an amendment to Basic Law: The Judiciary, prohibits all courts, including the Supreme Court, from deliberating on government and ministerial decisions based on the reasonableness judicial standard.
Opponents of the law argue that it dismantles critical safeguards for democracy, shifting the balance of power between the courts and the government and legislature in a manner that undermines Israel’s democratic foundations. They assert that this is a fundamental change significant enough to potentially undermine the country’s democratic identity.
Attorney General Gali Baharav-Miara has also called for the entire Basic Law amendment to be invalidated. She contends that the reasonableness standard is crucial for safeguarding senior law enforcement officials from arbitrary dismissal, preventing the politicization of law enforcement and preserving the rule of law.
In contrast, the government and attorney general argue that the court has no authority to review Basic Laws, which form the foundation of Israel’s constitutional framework. They assert that these laws define the roles and actions of institutions and should be above judicial review.
The court’s decision, to be reached after hearing oral arguments and interrogating the involved parties’ attorneys, will carry significant implications for the balance of power in Israel’s democracy. It may choose to strike down the law, apply interpretation tools, or assert its right to review Basic Laws, depending on the perceived impact of the reasonableness law on democratic values and governance.