Not an hour has passed since the Knesset passed its third reading of the law to reduce the cause of reasonableness, and the first petitions have already been filed with the High Court of Justice calling on the court to cancel the law.
Some of the Supreme Court justices, who were on a work trip to Germany, headed by the president of the Supreme Court, preceded their return to Israel, as if war had broken out, God forbid.
There is no room for this urgency. On the contrary, the role of the High Court of Justice at all times – and especially at this time – is to act with a certain distance, moderation and discretion, and not to be dragged into the heart of the boiling public shooter. They are not firefighters, they are judges of the Supreme Court. And a fight that will break out on a football field - woe betide the referee who joins the exchange of blows.
And the truth is that the legal basis for the petitions filed is tenuous. This is, it should be remembered, an amendment to Basic Law: Judiciary, and not an ordinary law. Repeal of the Basic Law raises a particular legal difficulty. It is not for nothing that a Basic Law has never been repealed by the Supreme Court, and there is no justification for it to begin now.
The Basic Laws are the constitution of the country, and they stand at the top of the pyramid of norms. Their constitutional status is what gives the Supreme Court the authority to overturn ordinary laws that contradict Basic Laws. But precisely this constitutional status makes one wonder: what could be the legal basis for abolishing Basic Laws? Of course, for example, a petition filed with the U.S. Supreme Court to overturn a constitutional clause or amendment would have been dismissed with contempt.
On the other hand, since unlike in the United States, enactment of Basic Laws does not require a two-thirds majority, and a majority of 61 Knesset members or even less is sufficient, here there is concern of misuse of Basic Legislation. Against this background, the Supreme Court has ruled, in several rulings in recent years, that it has, in exceptional and extreme cases, the authority to cancel Basic Laws as well.
Indeed, these rulings were also criticized by the conservative justices on the Supreme Court (mainly Solberg, Mintz, and Elron), who had reservations both about the court's modus operandi (expanding its powers with incidental statements that were not necessary for the purpose of the matter at hand), and about the very doctrines of intervention in basic legislation that the court developed. And there is a point in their words.
But even the majority system has no basis for abolishing the law of reasonableness. Even in the opinion of the most activists, the authority to cancel basic legislation will arise only in exceptional and extreme cases, and when it comes to "a fatal blow to the core of the Jewish and democratic identity of the state" (in the words of President Hayut).
And it is difficult, very difficult, to argue that reducing the cause of reasonableness has such dramatic significance. The truth is that there is no way to know at this stage exactly what the outcome of the law will be. Given that the court will be able to continue to use the existing grounds for judicial review, such as extraneous considerations, lack of authority, conflict of interest, disproportionality, and more – and even expand the existing grounds in order to "compensate" in appropriate cases for the cancellation of the grounds of reasonableness – the claim that the legislation passed yesterday omits the basic core of the state as Jewish and democratic seems to me an extreme exaggeration.
The claim that this is the first brick in the wall, another slice using the salami method, etc., is also speculative at this stage. Indeed, some members of the government and coalition announced that this is only the first stage in a series of constitutional amendments, the accumulation of which may, perhaps, harm the separation of powers and the independence of the judicial system, which is part of the basic core values of the democratic state. But we have already learned that the distance between declarations and actions is great, and there is no telling if and how these plans will actually be realized.
The rejection of the petitions on the grounds of immaturity is, therefore, in my opinion, the order of the day. It's too early to discuss them. Such a decision would also leave an opening for future intervention, if circumstances justify it.
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