If the amendment to Basic Law: Judiciary that reduced the grounds of reasonableness is indeed repealed in a few days, the move will be perceived as a last-minute political hijacking, and could severely damage the public standing of the Supreme Court. Therefore, supporters of the court, who want a strong institution that enjoys public trust, should cry out: Stop!
The following words were written by none other than former Supreme Court President Aharon Barak, the father of the constitutional revolution, in his seminal ruling in the Mizrahi Bank case: "In most Basic Laws there are no binding provisions... The obvious implication from this is that it is possible... For example, to change the Basic Law: Judiciary... In a Basic Law passed by an ordinary majority."
And here we are about to discover, surprisingly, that Barak was wrong, and that the Basic Law: Judiciary cannot, in fact, be changed by an ordinary majority; not even by a majority of 61 Knesset members; Not even by a majority of 64! Rather, it will require nothing less than "broad consensus." The reason for reasonableness can be expanded by the court as it pleases, by the votes of three, five, or seven judges, but if the Knesset wishes to reduce it, then even a Basic Law passed by a majority of 64 Knesset members will not suffice.
Moreover, the demand for "broad consent," which is raised in an unprecedented and inconsistent manner precisely in order to cancel a Basic Law that narrows, to a limited extent, the authority of the Supreme Court, gives the clear impression of a cat seeking to preserve the cream. A court that for decades led an activist revolution that glorified its powers and powers, cancels the first attempt to change the trend, and removes all restrictions, in principle. Nothing stands before the Supreme Court.
The power to cancel Basic Laws was never given to judges. And even those among them who took this authority into their own hands have repeatedly said that it will be used only in extreme and exceptional cases, when all the extremes and foundations of democracy are severely damaged. The reduction of the cause of reasonableness does not reach such a level, and seven judges will testify to this. Was it empty, uncovered text?
As you may recall, the proceedings in the reasonable petitions were greatly expedited. The time frame impaired the ability of litigants to submit orderly arguments, and placed a heavy burden on the judges to hurry up their writing, lest they delay the deadline, January 12, 2024, when President Hayut and Justice Baron can sign off on the ruling. It now turns out that this timeframe was absolutely necessary to ensure that the hand of activist judges prevailed, if only slightly.
The power to cancel Basic Laws was never given to judges. And even those among them who took this authority into their own hands have repeatedly said that it will be used only in extreme and exceptional cases, when all the extremes and foundations of democracy are severely damaged
Even the terrible war that broke out in the meantime did not stop the process. In recent months, Israeli society as a whole has been making a supreme effort to reduce disagreements, unite ranks and increase unity, so as not to harm the fighting and the fighting spirit. It would have been very appropriate for the Supreme Court justices to lend a shoulder and participate in this national effort, instead of the opposite: to present us, in the midst of the fighting, a ruling that revolutionizes the relations between the authorities, which will once again ignite a fierce public controversy. Such a ruling, if published, will, of course, have legal validity, but very little public legitimacy. The reasonableness correction will be canceled, but at a heavy cost to the court. Even his supporters will have a hard time convincing us that there is indeed a trial before us, and not a last-minute camper hijacking. The belief that the court operates on the basis of impartial legal professionalism will be further undermined, and public trust will be damaged. After such a ruling, the argument that appointments to the Supreme Court should be on a "professional" basis will sound hollower than ever. It will be a cry for generations.
It's not too late. And Supreme Court justices do not suffer from a lack of wisdom or creativity. The legal options in such a petition are many. I am convinced that with enough goodwill, it is possible to reach a more agreed-upon, less explosive outcome that reveals responsibility for the complex historical moment. I hope that the responsibility of the Supreme Court justices will increase, and they will find a way to issue a ruling that will add unity rather than increase division.
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