In the video: Justice Fogelman: The High Court of Justice is authorized to conduct judicial review of Basic Laws in an expanded panel (AM)
Yesterday's decision by Supreme Court President Esther Hayut was the latest signal from the High Court of Justice ahead of Israel's Black September – a slew of dramatic Supreme Court hearings in expanded ensembles that could shape our lives in the coming years. This September will be black, because it will reflect one of the peaks of the socio-constitutional crisis we have found ourselves in, in which the High Court of Justice will have to deal with the question of what and to what extent it can do to save Israeli democracy.
Both the justices identified as more conservative and those identified as liberal know full well that what happened before September will not be after. If the High Court of Justice decides to bow its head to the regime's reversals, it will mean the judiciary capitulating to turning Israel into a Polish-Hungarian model of rule. On the other hand, if the justices stand by the outburst, they know that a reverse popular protest against the Supreme Court may immediately arise, and worse, the threat by the prime minister and his senior ministers not to uphold the High Court ruling may materialize, and then we will find ourselves in the chaos in question.
High Court of Reasonableness
All the justices of the High Court of Justice, headed by President Esther Hayut, decided yesterday to issue a conditional order to the government as part of the hearing of petitions against the cancellation of the reasonableness grounds (the undersigned's use of the word "cancellation" rather than "reduction" is because, in my view, turning a government in Israel into one, which can make decisions without judicial review, is turning the cause of reasonableness into a dead letter). The justices explained the decision in streamlining the process and emphasized that this decision does not hint one way or the other about future rulings.
A full panel of 15 judges to hear the High Court of Justice canceling the grounds of reasonableness (photo: photo processing, Yonatan Zindel, Noam Rabkin Fenton/Flash 90, Ami Shumen, Judiciary Spokesperson)
Usually, a conditional order is actually the stage in the process where the High Court issues a kind of yellow card to the state, to the government, to whoever responds to the petitions. The judges effectively shift the burden of explanation and persuasion to the petition respondents. The order is always worded with: "Why not...", that is, why the governmental authority will not accept the petitioners' position, or at least part of it. As already mentioned, in this case, the wording was technical. The main explanation for this lies in the fact that the dramatic decision in the proceedings to hear this case has already been made – for the first time in the history of Israeli law, the High Court of Justice will sit on a panel of 15 judges.
Trivia fans once had a full panel in the High Court of Justice (who is a Jew in 1970), but then there were only 9 justices on the Supreme Court. In any case, in the decision to staff all the red chairs, all in courtroom C of the Supreme Court, Hayut has already made clear the seriousness of her intentions; This does not necessarily mean that the petitions will be accepted, but it does mean that the High Court of Justice, at least among many of the judges who serve on it, sees itself as capable of overturning Basic Laws in extreme cases, which are extremely exceptional. This has not happened to date, but the possibility that it will happen for the first time around the legislation of the regime revolution is certainly an option.
Approval of the cancellation of reasonableness grounds in the Knesset
The final vote on the grounds of reasonableness (Knesset channel)
After the hearing on September 12, the High Court will have to decide on two stages:
1. Does the High Court have the authority to cancel a Basic Law based on the basic principles of the system (a Jewish democratic state)?
2. Does reasonableness really contradict the basic principles of the method?
The first stage has actually already been decided. Not for nothing, Justice Uzi Fogelman said in the "Incapacitation Law" hearing that the High Court of Justice has the authority to cancel a Basic Law. This matter has already been decided by the High Court of Justice that dealt with the Nation-State Law. The justices, then by a majority of 10 to a single minority opinion, did reject the petitions, but wrote in their ruling that the repeal of a Basic Law in Israel is certainly possible. "At this stage of the Israeli constitutional enterprise, there is one very narrow limitation that applies to the Knesset in its cap as a constituent authority, and that is that it cannot deny by Basic Law the very fact that Israel is a Jewish and democratic state," Hayut wrote in the ruling at the time.
Regarding the second stage, it can be assumed that some of the justices will believe that crushing the cause of reasonableness dramatically violates the system of checks and balances that are supposed to characterize a democratic state, and therefore the change made in the Basic Legislation violates the principles of the system. On the other hand, it is quite likely that some judges will think that this is not the case for which it is worth going to a constitutional crisis. The big question, of course, will be how many.
High Court of Justice "The Law of Incapacitation"
The petitions against the so-called "Incapacitation Law" also seek in practice to repeal a Basic Law. The amendment, known as the "Incapacitation Law," is actually an amendment to Basic Law: The Government. The amendment defines what constitutes "incapacitation" that a prime minister may reach under the law. In order to prevent the possibility that the attorney general will define the prime minister as incapacitated due to his legal condition, the Knesset members defined that incapacitation can only stem from a medical condition, and even then the person who is supposed to declare the prime minister incapacitated is not the advisor but the elected official.
Prime Minister Netanyahu and Attorney General Baharav Miara (Photo processing, Tomer Neuberg, Jonathan Zindel, Flash 90)
Two signs make it clear to us that Hayut's attitude toward this law is different from its attitude toward reasonableness. First, unlike the reasonableness hearing, here in the first stage, the president determined only a panel of three judges (albeit the three most senior members of the system), and only after they were convinced that there was room to move forward, did they issue the same conditional order and the panel was expanded. The second difference is that, unlike the High Court of Reasonableness, here the President determined a panel of 11 and not 15.
The reason is that while the High Court of Reasonableness deals with the essence of the Basic Law – whether what is written in it contradicts the principles of the system – the High Court of Incapacitation does not deal primarily with the substance but with the manner. Although Advisor Gali Baharav Miara also had reservations about the amendment, she focused mainly on the way, the fact that the incapacitation law is personal and is intended to protect Netanyahu from his fear of incapacitation. Indeed, the High Court of Justice issued a conditional order only on this matter – why won't this law apply from the next Knesset? In other words, whether the petitions are accepted or rejected, the decision will not deal with the content of the law, but with the period of its application – and this is a dramatic difference.
Supreme Court President Esther Hayut (Photo by Jonathan Zindel/Flash 90)
High Court Conflict of Interest
This petition is a kind of follow-up to the famous High Court of Justice known as the High Court of Justice 0:11 – that well-known knockout with which the prime minister defeated a series of petitioners who, before the establishment of the Netanyahu-Gantz government, argued that imposing the mandate on a criminal defendant was extremely unreasonable. The High Court rejected the petitions but conditioned Netanyahu's term on a detailed conflict of interest arrangement to be prepared for him by the attorney general, and so it was. In practice, however, Netanyahu has repeatedly violated the conflict of interest arrangement, interfering in the details of Yariv Levin and Simcha Rothman's legal plan. Without confusion, after the enactment of the incapacitation law, Netanyahu informed the nation that he had "entered the event."
I have already written here that Netanyahu made a grave mistake when he thought that the law of incapacitation removed the sword of termination of office from his head for legal reasons. The adviser believes that there is no need for the tool of incapacitation or even on the grounds of reasonableness to remove a prime minister due to a conflict of interest. In her previous response to the High Court, she explicitly wrote that the matter was within the jurisdiction of the court. We also know that the counsel believes that Netanyahu flagrantly violated his conflict of interest arrangement. Are these one plus one necessarily two, meaning that the attorney general, like the petitioners, believes that the High Court should order Netanyahu's term of office to be terminated due to a conflict of interest? I doubt it. This move goes so far as to turn stomach, and it can be assumed that the consultant will do everything possible to avoid expressing such a position; On the other hand, I already wrote this here after several of her decisions, we have already been surprised several times by the counselor's firm positions, so go figure.
Netanyahu's "I'm entering the event" speech
Netanyahu: Out of national responsibility, I decided to suspend the legislation in order to reach a broad consensus (GPO)
The High Court convenes the Committee for the Selection of Judges
Justice Minister Yariv Levin is furious that the crowning glory of his "reform" – changing the composition of the judicial selection committee – is deep in the freezer. True, Netanyahu promised to thaw it at the upcoming winter conference, but autumn seems far away and you will know what will happen by then. In the meantime, Levin uses the only authority in this context that clearly lies in his hands – the authority to convene the committee for the selection of judges. Levin believes that appointing Hayut's replacement according to the customary senority system will forever etch his defeat. Therefore, as far as he is concerned, until a new law is enacted, or alternatively, until he reaches a golden agreement with the president, he will not convene the committee.
Failure to convene the committee will, of course, cause enormous damage to the overburdened judicial system. The loser from Levin's trolling is the public litigating in the courts, who can only dream of a verdict in a reasonable time. They are less interesting to Levin. He cares more about the finger in the eyes of progressive judges.
Levin's problem is that in this aspect – the search for his victory picture – he is less frightening to Hayut and the other judges, since if a replacement for Hayut is not chosen until her retirement, she will automatically be replaced by her deputy, Justice Uzi Fogelman. This is what the law states. Fogelman is no less an activist and liberal than a colleague, some would say even more. In other words, it's hard to threaten animals with Fogelman.
Minister of Justice Yariv Levin (Photo: Knesset Spokesperson, Knesset Spokesperson, Noam Moshkovitz)
All the potential agreements between Hayut and Levin, mentioned in recent days in the press, are hopeless and baseless. The three justices who will sit on the judicial selection committee that will select the next chief justice will never raise their hands in favor of a candidate who is not a veteran Supreme Court justice. Neither Hayut, nor Solberg (who replaced Folgman on the committee yesterday), nor Dafna Barak Erez (who will replace Amit in this vote since he will stand for election), and not any of the Supreme Court justices will agree to support Justice Yosef Elron – the only one who flows with Levin – as the next president of the Supreme Court.
Therefore, if Levin refuses to convene the committee, the High Court of Justice will have to decide in September whether to require him to do so. This is not a change in the Basic Law, but in fact an upholding of the existing law, which explicitly states that the Supreme Court must have 15 judges. Levin will probably argue that he is not the first to delay the selection of judges, and will mention the case mentioned here more than once in which former Justice Minister Tzipi Livni left the Supreme Court missing for almost a year due to then-President Aharon Barak's refusal to appoint Prof. Ruth Gavison as a Supreme Court justice.
So how will Israeli society emerge from this Black September? It's hard to predict, maybe she'll grow out of it, maybe the depression is yet to come. What is clear is that the gatekeepers and the High Court, as long as they are still with us, will at most be able to wage containment battles. This was already well understood by the protest, which rightly does not let go. If it hadn't been established, we would have long ago ruled the Warsaw-Budapest style. Our democratic future can only be determined by citizens, not judges and advisers, however courageous they may be.
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