It seems that the humanitarian pause that the war gave to social polarization around the justice system is over.
The government refrains from further engaging in reform. The High Court, on the other hand, not only failed to show responsibility for refraining from issuing a revolutionary ruling like the High Court of Reasonableness in Wartime, it also showed no responsibility for the outcome of the ruling, which is no longer a tunnel under the legislature, but a metro, this time under the constituent authority. Only one authority can make such a dramatic decision on the merits of a voice, in an unprecedented time frame and during the period of President Hayut's "transitional government."
Supreme Court justices enter discussion on narrowing the Reasonable Cause Law (12.09.23) // Netael Bandel
The fragility of the Basic Laws, which by an occasional majority will be enacted or repealed, have been the subject of widespread criticism by the High Court of Justice. The same High Court that did not hesitate, of course, to build entire towers on the Basic Law on Human Dignity and Liberty and to establish it as a constitution, a law enacted in the same way.
And now, the High Court of Justice will soon invalidate the Basic Law regarding reasonableness, among other things, by means of the extreme doctrine of the "unconstitutional constitutional amendment" – this is the most revolutionary ruling after Mizrahi Bank. All this by a narrow majority of eight judges against seven, on Cole's side. The same voice that the day after the ruling will retire from the court, which means that the day after publication there is a majority of opinions on the legality of the law.
But in what sense does a Basic Law harm the hard core of the state as a Jewish and democratic state, no less, when seven Supreme Court justices think it is constitutional? Wouldn't it have been appropriate for such a ruling to require at least a qualified majority of the panel?
The Knesset plenum during the vote on the Law Eliminating the Cause of Reasonableness (Archive), photo: AP
As far as I have examined, there is not a single ruling in the history of the Supreme Court in which a law, let alone a Basic Law, struck down a law less than a year as reasonably: within six months from the date of filing the petitions and three months from the date of the hearing. If it were the legislature, the Supreme Court would call it "a flaw that goes to the root of the process."
In petitions in which the High Court intervened in legislation over the past decade, it did so in an average of four years from the date of filing the petition. In the High Court of Justice regarding the Basic Nation-State Law, which is similar in its characteristics to the High Court of Reasonableness, it was 3 years from the filing of the petitions and one year from the hearing. An exception to this is the High Court of Justice, for example, the Disengagement Law in 2005, which was set five months after the petition, but there the urgency is clear – a political move that has already been implemented. What is the urgency of the reasonable High Court? The graduation party of President Esther Hayut and Justice Anat Baron that for no substantial reason, the entire schedule was artificially timed to it. The publication of the verdict brings us back to the conflict on the eve of the seventh of October, when our fighters at the front and our flutes are buried. So if you already schedule, then after the war.
In the High Court of Justice in 2011, for example, Justice Ayala Forcaccia finished writing her opinion to disqualify the law, but other judges, such as Asher Grunis, did not submit their opinions, the date of her retirement came and she was forced to leave the panel. Although this led to the reversal of the result of the judgment and the rejection of the petitions. To date, Justice Noam Solberg has not submitted his opinion, and some have whispered in his ears to act like Grunis.
Did not submit his opinion. Justice Sohlberg, Photo: Noam Rivkin Fenton
More than it bothered Deputy President Justice Uzi Fogelman about reviving the rift in the midst of war, it bothered him that the verdict had been leaked. This is a precedent when it comes to the Supreme Court, but routine in almost every other governmental institution. When suspects and defendants petitioned the High Court of Justice to intervene and order an investigation into leaks, the High Court refused. NGOs that called for an investigation into the leak encouraged leaks against suspicious civilians. I am in favor of leaks and make a living from them, but I oppose shock only when they damage the Hall of Gods. For years, the High Court of Justice knew how to preserve freedom of the press, and we will see if this time, too, when it comes to it, it will be wise to leave the leaker alone.
The ruling will be signed by 15 judges, but it must be signed by the sixteenth judge – Justice Minister Yariv Levin, who broke the record for most justice ministers with minimum achievements and maximum damage. The Law of Reasonableness is useless, certainly not in the negligence with which it was enacted without even defining what reasonableness is, and even if it were not invalidated, it would be possible to circumvent its limitations.
Levin in the Knesset. Negligent legislation, photo: Oren Ben Hakon
But the law allowed activist judges to give themselves more power backed by left-wing protests outraged by the minister. The reasonableness court taught what is known in advance that the limitation of the High Court of Justice should have been enacted to strike down laws by only a privileged majority, ten judges, for example. A whole year of social polarization has produced nothing and nothing. The opinion in the ruling of the candidate for Supreme Court President, Justice Yitzhak Amit, will show that the Supreme Court is headed by him to escalate the struggle of the authorities and the social rift.
The extreme opinion he wrote has also drawn criticism from within the Supreme Court, where there are those who deeply disapprove of the arrogant definition of the Supreme Court as the main engine that drives Israeli democracy. There is another possibility – reaching a compromise in which Justice Noam Solberg will be appointed president, who in any case according to the senority will be president after Amit. That way the wounds might heal.
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