Tonight, the High Court of Justice accepted the petitions against the amendment to Basic Law: Judiciary, which eliminated the court's ability to intervene in government decisions on the grounds of reasonableness. This is the most dramatic ruling since the Mizrahi Bank ruling, in that for the first time in Israel, the High Court of Justice intervenes in a Basic Law because of its content and makes precedent-setting use of the extreme doctrine of the "unconstitutional constitutional amendment."
The ruling changes the structure of the regime in Israel and places the court not only above the legislative branch, but also above the constituent authority. Eight justices ruled that the petitions should be accepted and the law annulled, while seven justices in a minority opinion ruled that the petitions should be dismissed.
President of the Supreme Court, Justice Esther Hayut, photo: Alex Kolomoisky
This is a decision on Cole's side, but the picture is much more complex. The ruling deals with two questions: whether the High Court of Justice has the authority in principle to intervene in Basic Laws, and, to the extent possible, whether the amendment to the Basic Law justifies such intervention and to what extent. Only two justices, Noam Solberg and David Mintz, believed that the High Court of Justice did not have the authority to intervene in Basic Laws, while 13 justices held that the authority existed.
Three offered a softened interpretation
Of the seven justices in the minority opinion in rejecting the petitions, three justices intervened in the Basic Law through "sustainable interpretation" and interpreted it so that the grounds of reasonableness against the government would not be completely eliminated, but rather a softened version of it would remain. Thus, the petitions were formally accepted, but the judicial intervention in the Basic Law regarding reasonableness won an absolute majority of 11 justices out of 15.
Already in the ruling in petitions against the Nation-State Law in 2021, a majority of the justices ruled that, theoretically, there could be a possible situation of interference with Basic Laws due to their content. In fact, already in previous judgments. But in the Supreme Court, the justices competed over who narrowed this possibility more than his friend.
Judge Noam Solberg (Archive), Photo: Oren Ben Hakon
Justice Esther Hayut set a test for intervention in the most exceptional cases of serious harm to democracy. Judge Daphna Barak-Erez, considered more activist, set an even stricter test. Judge Neil Hendel, meanwhile, was harsh on both, stating that such intervention was largely only theoretical "for the foreseeable future."
Those who read the verdict at the time got the impression that such intervention would come with the rise of an almost Nazi government, or one that harmed what until recently was the fundamental component of democracy, namely the decision of the people, such as the annulment of elections and the like. But it was diversionary terminology. In the narrow monkey of the needle, the court moved herds of elephants tonight. Of all the interventions, the High Court chose the most extreme.
If until now it was customary to talk about "the tension between the legislative and judicial branches," from now on there is no such tension. The court is entitled to intervene in the content of Basic Laws, and according to some justices, it is not really possible to limit the judiciary, even though Justice Aharon Barak wrote in the past that such a possibility exists. The justices ruled that reducing judicial intervention by the Knesset is an act of conflict of interest. Judge Mintz replied that the court's disqualification of its limitations was similarly flawed.
Demonstration against legal reform (archive), photo: AP
The judgment deals mainly with the limitations that apply to the constituent authority, and that it must be further restricted. Conspicuous by the almost complete lack of restrictions on the court. Justice Esther Hayut wrote that once the constitution is completed, it will be possible to "examine" the reduction of judicial review.
Justice Yael Willner wrote that the law grants the court the authority to decide any matter as it wishes when it is required to do justice. More than once, the Supreme Court calls on the legislature to establish Basic Law: Legislation that will regulate the powers of the legislature and the court.
In fact, this regulation will also be placed on the stones of the court, which will invalidate the Basic Law at will. Even if it is an exaggeration to say that tonight, the authority of the Constituent Authority was emptied, it can certainly be said that the Court has placed itself above it.
Self-restraint
What limits the court itself from now on? The majority opinion of the justices will say that the values of Israel as Jewish and democratic and the Declaration of Independence. But in the same breath they also ruled that only the court would be the one to interpret the Charter and the values of the state and determine what would suit them and what would not. That is, it is the only authority that limits itself. During the large Kaplan demonstrations, the protesters held up a sign saying "Court - Supreme Court." Tonight their vision came true.
The new regime structure created tonight gave significant and decisive weight to the Judicial Selection Committee. Once the court has been given the authority to intervene in the content of Basic Laws, the influence of citizens, through their elected representatives, on the arrangements between the authorities can be expressed mainly in the committee and in the identity of the judges. Already, a president of the Supreme Court and two judges must be elected, and in about a year another judge. The justice minister will have no choice but to continue insisting there.
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