August and September will be particularly hot this year, and not because of the climate crisis. Following several petitions to the High Court of Justice against the implementation of the government's legal reform, the State of Israel may enter a real constitutional crisis.
An amendment to the Basic Law reducing the cause of reasonableness, an amendment to the Basic Law on incapacitation, the Tiberias Law, and convening the Committee for the Selection of Judges – these are the issues on which the High Court will hold a hearing, as a stage towards a decision from its point of view.
Israel Hayom News
Supporters of the reform demand that the High Court show restraint and restraint, while opponents of the protest demand that the justices increase judicial activism into new rulings and legal decisions that the High Court has never taken.
Next week, official hearings will begin in the office of Attorney General Gali Bahar-Miara regarding its response to petitions against the amendment to the Basic Law on Judiciary, which was enacted as part of the legal reform and aims to reduce the use of the grounds of reasonableness by the High Court of Justice so that it does not apply to government and ministerial decisions.
In discussions held in the Knesset Constitution Committee, Deputy Attorney General Dr. Gil Limon, who is responsible for administrative law, said that reducing the likelihood "creates a black hole."
Attorney General Gali Baharav-Miara, Photo: Oren Ben Hakon
Preliminary consultations between senior Justice Ministry officials indicate that it will not be easy to repay this claim in the High Court of Justice. The Attorney General is already inclined not to ask the High Court to cancel the law by virtue of the "unconstitutional constitutional amendment" – the legal doctrine according to which the High Court can intervene in the content of Basic Laws and dispute the essence written in them.
According to Bahar-Miara, this is an "extreme doctrine" and contrary to the calls of the protest leaders, the counselor strives to distance herself from it as much as she can.
The response will be creative
The issue that will be examined in the official hearings is whether it is possible to require the High Court of Justice to intervene in the Basic Law by virtue of another doctrine: "the abuse of constituent authority."
Attorney General Gali Baharav Miara, Photo: Mark Israel Salem
The attorney general did so only last week regarding the amendment to the incapacitation law. In this case, too, the Justice Ministry would have found it very difficult to claim interference with the Basic Law without Netanyahu's "entertaining event" speech, in which he admitted that the law was personal and intended to allow him to ignore the conflict of interest arrangement.
However, those around the counsel believe that despite the serious implications of the reasonableness law, it is difficult to claim misuse because the characteristics of the law and its content, on the face of it, meet the requirements demanded by Supreme Court President Esther Hayut in the Shafir High Court, which expanded the doctrine and defined the rules for the enactment of Basic Laws.
Those around the advisor want to call on the High Court of Justice to use this doctrine and intervene in the Basic Law, but at this stage it is still unclear on what grounds and how to intervene.
Knesset Channel
The attorney general's office knows that their response to the High Court of Justice will be particularly creative, possibly even precedent-setting. The emphasis of the position is expected to be that the High Court must ensure that it retains the legal capacity to prevent the dismissal of gatekeepers.
In any case, the Attorney General's position will make it clear to the High Court of Justice that according to Justice Minister Levin's public speech, the amendment to the Basic Law is only the first law as part of a complete reform.
As far as she is concerned, legislative steps toward completing the reform – with an emphasis on radical changes in the Judicial Selection Committee, which will allow the coalition to appoint judges independently – will lead the advisor to argue for intervention in the reform by virtue of the extreme doctrine of the "unconstitutional constitutional amendment."
The hearing on the petition will take place in September, and ten days before that, the Attorney General will present her position.
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