Israel’s President of the Supreme Court Justice Esther Hayut announced Monday that the High Court will convene on September 12 to hear petitions on the law to abolish the reasonableness standard – a key part of the Netanyahu government’s plan to weaken the country’s judiciary, which was passed by the Knesset last week.
Hayut further said that all 15 Supreme Court justices will take part in the discussions.
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After the abolishment of the reasonableness clause last week, the High Court did not issue an interim injunction to freeze the amendment to the law. According to Justice David Mintz’s decision, the hearing will take place after the court’s recess, before the departure of Justices Hayut and Anat Baron, who are considered liberal judges, in October.
It was also decided that the government and the Knesset will submit their responses to the petitions up to ten days before the hearing.
According to Prof. Yaniv Roznai of Reichman University, “The decision that the Supreme Court will hear the petitions with a full panel of 15 judges indicates that the court believes this is the most important case ever: a significant reduction of the court’s powers.”
“The full composition will also provide an opportunity to make a clear judicial statement regarding the applicability of the doctrine of ‘unconstitutional constitutional amendment’ in Israel, and the court’s authority to invalidate basic laws,” he added.
Former Supreme Court Justice Ayala Procaccia told Haaretz that Hayut’s decision is a “hint at the significance of the occasion, not necessarily the outcome of the process.”
Prof. Yoav Dotan from the Hebrew University said that the decision for all 15 Supreme Court to sit on the panel stems out of “a desire to create a representative appearance, and perhaps, theoretically, a unified front despite the justice’s different approaches.”
According to Dotan, Hayut foresees “a real possibility of the court intervening to create a new constitutional doctrine.”
Israeli Prime Minister Benjamin Netanyahu has refused to say whether he would abide by a High Court ruling striking down a key part of his government’s controversial overhaul of the judicial system.
Speaking last Thursday to CNN’s Wolf Blitzer, Netanyahu said “I hope we don’t get to that,” when pressed on how he would respond if Israel’s highest court were to intervene in his government’s recent elimination of the reasonableness standard – the criterion that gives the High Court authority to strike down government decisions that it deems unreasonable.
Dr. Ronit Levine-Shcenur, who leads the Forum of Legal Scholars for Justice, said that Hayut’s decision to have a full panel is “not necessarily hinting at the outcome, but definitely indicates the court’s desire to ensure maximum legitimacy for its ruling.”
According to Levine-Shcenur, the last time a full panel of the Supreme Court deliberated on a petition was in 1970, when the question of “Who is a Jew?” was raised on the Law of Return. “Now, a full panel is needed to inquire about the definition of democracy or what democracy is,” she added. At the time, the court had only nine justices.
Several organizations, as well as private individuals, have filed petitions against the law to abolish the reasonableness clause since its passing last week. They include the Bar Association, the Movement for Quality Government in Israel, and former lawmakers, army officers and social activists.
The Movement for Quality Government in Israel, the main petitioner said on Monday, that “we are facing a historic event - the gathering of all Supreme Court judges to discuss the democratic future of the State of Israel.”
The basis of the appeals is the argument that the amendment to the basic law on the judiciary undermines the core authority of the judicial system and severely impacts Israel’s essence as a democratic state. Some of the petitioners claim that the amendment was passed through a fundamentally flawed legislative process.
In the appeal filed by the ‘Democratic Movement,’ it was stated that “the amendment is part of a comprehensive, sweeping, and extensive assault on the implementing authority and its leadership, challenging the democratic identity of the State of Israel, the rule of law, the structure of government institutions, the separation of powers, and the independence of the judiciary.”
The petitioners argued that the amendment creates a form of an “island of immunity” that shields governmental actions from judicial scrutiny and unrestrained power.
The bill to abolish the reasonableness standard, which ends the High Court’s authority to strike down government decisions that it deems unreasonable, passed the third and final Knesset vote needed to ratify it into law last Monday.
In response, mass pro-democracy protests were ignited across Israel, which included violent clashes with police in Tel Aviv and Jerusalem.
The doctrine of reasonableness originates from English law and has been applied by the Supreme Court in Israel over the years. It served to protect individuals from government infringement on their fundamental rights and to invalidate extreme and unreasonable appointments.
Under the newly approved law, the Supreme Court is no longer allowed to invalidate any government decision, including those made by the prime minister, ministers, or Knesset members, such as appointments or dismissals.
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