In the video: The government vs. the High Court: the debate on the abolition of the grounds of reasonableness/spokesperson for the judiciary
The justices of the High Court of Justice are preparing to issue a ruling this evening (Monday) at 17:00 p.m. on the law that eliminates the grounds of reasonableness. It is believed that the High Court justices want to publish the ruling this evening in order to prevent further leaks, and in response to a proposal raised in the Knesset, which was first published in Walla!, to allow the publication of the ruling to be delayed due to the war.
Last Wednesday, the main edition of Channel 12 News published a leak of the draft Supreme Court ruling, according to which the justices are expected to strike down the law by a majority of 8 judges to 7. This is an unprecedented step and the first-ever leak of a draft ruling from the High Court of Justice to an Israeli media. When the publication was published, Walla's editorial board notified the spokeswomen of the court administration, who initially knew nothing about the leak. "The writing of the judgment has not yet been completed. We view unauthorised leaks with great severity and will not comment on this," a judiciary spokeswoman said in response.
High Court Justices/Reuven Castro
According to the leak, former Supreme Court President Esther Hayut was among those supporting the disqualification of the law. In the draft ruling, Hayut wrote that "the Basic Law constitutes a significant deviation from the 'constitution in the making,' and therefore it must be adopted by broad consensus and not by a narrow coalition majority."
Justice Ofer Grosskopf joined Hayut's opinion and said that "the requirement to apply the law to whoever heads the pyramid is at the core of the imperative; there is no person who is not subject to the rule of the law." Justices Yitzhak Amit, Anat Baron, Khaled Kabub, Uzi Fogelman, Dafna Barak-Erez and Ruth Ronen also voted in favor of disqualifying the law.
Justice Yechiel Kasher objected in principle to the content of the law, but argued that the court did not have the authority to invalidate it. "The task of enacting the Basic Laws is within the authority of the Knesset and not of this court." Justice Noam Sohlberg also opposed the repeal of the law, and even said that "I am of the opinion (not to invalidate Basic Laws) that most of the judges and presidents of this court stand." Also opposing the disqualification of the law were Justices Yosef Elron, Alex Stein, Yael Willner, David Mintz and Gila Kanfi-Steinitz.
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Supports the disqualification of the law. Esther Hayut/Reuven Castro
As mentioned, the day after the leak, Walla found out! Because the coalition examined the possibility of changing the law that states that a judge must deliver judgments up to three months after his retirement. This was done in order to delay the publication of the expected ruling on the cancellation of the reasonableness grounds for the postwar period.
Yesterday, it was reported that Shas Chairman Aryeh Deri instructed Interior Minister Moshe Arbel and other Knesset members to formulate and promote legislation that will prevent the publication of High Court rulings on the issue of canceling the grounds of reasonableness and incapacitation. This is on the grounds that the ruling will deepen the rift among the people during wartime. He also sought to establish a temporary order according to which the period for writing the ruling, which currently stands at three months, would be extended to a period of nine months. "In this way, the composition of the court will be able to publish its decision later, without being bound by the time frame within the fighting, thus preventing the rift and division among the people at this time," he said.
Aryeh Deri, January 1, 2023/Flash 90, Jonathan Zindel
What is the grounds for reasonableness?
The grounds for reasonableness were developed by the Supreme Court in order to criticize decisions of the executive echelon, i.e., bureaucrats in government ministries and local authorities, and to criticize decisions of the elected echelon, including appointments. That is, criticism of politicians' decisions.
What does the coalition want to do?
The coalition wants to reduce the reasonableness grounds and adapt it to a proposal written by Supreme Court Justice Noam Solberg in 2020 in the journal HaShiloach. According to Sohlberg, the grounds of reasonableness should be reduced rather than eliminated and applied only to decisions of the administrative level (bureaucracy) and not to decisions of elected officials (politicians).
Solberg wrote: "Reducing the substantive grounds of reasonableness and applying it only to decisions made by a professional echelon, as opposed to an elected echelon, may sound far-reaching. The rule of law in government authorities, what will happen to it? I will try to allay the concern a little: judicial review of the decisions of the elected officials is valid and exists. The reduction of the substantive grounds of reasonableness does not eliminate the traditional grounds of review available to the court. Among these grounds, it is appropriate to distinguish a few words from the grounds of proportionality, by virtue of which the court criticizes administrative decisions that violate fundamental freedoms of the individual. It is important for our purposes, because it holds great potential to fill the absence of the substantive grounds of reasonableness with regard to judicial review of the decisions of the elected echelon."
Supreme Court Justice Noam Solberg/Flash 90, Miriam Elster, Flash 90
What would Israel look like without the grounds of reasonableness?
Reducing the reasonableness grounds may alleviate some of the tensions between the Knesset and the government and the Supreme Court, since reducing it will lead to the court not hearing decisions made by the elected echelon. However, on the other hand, the bill as it stands today sweeps and eliminates the possibility of the High Court of Justice hearing any decision made by a prime minister, minister or any other elected official.
- More on the subject:
- High Court of Justice
- Grounds of reasonableness
- The Legal Revolution