The High Court of Justice hearing on the judicial reform’s reasonableness standard law is set for the morning of September 12, and while the historic and sensitive event may impact the lives of every Israeli citizen and many a Diaspora Jew, the process remains esoteric and arcane to many.
Israel’s Supreme Court, as the High Court of Justice, can hear petitions for judicial review by people and organizations against government officials and bodies on constitutional and administrative matters. These petitions express grievances with the government’s action and argue how it violated rights or law. They can be as long as 100 pages and may explore previous rulings by the court and the background information and events.
The reasonableness standard enabled the court to strike down government administrative decisions deemed far beyond what a reasonable and responsible official would allow. The law prevented the review of administrative decisions by the government, ministers, and prime minister.
How will the High Court hold the hearing?
Following the July 24 passing of the judicial reform’s reasonableness standard law, an amendment to Basic Law: The Judiciary, a series of petitions were filed by citizens and non-governmental organizations calling for the cancellation of the law.
For petitions filed on similar issues, the court may choose to consolidate them for a single hearing, as it has with the reasonableness law. The court accepted eight petitions, and on August 9 determined that it saw no reason for further petitions to be added to this case. The court likely felt that the eight petitions covered a wide variety of arguments and positions.
Petitions can have multiple people and organizations filing together. The petitioners include the Movement for Quality Government in Israel, Smoke Free Israel, the Civil Democracy Movement, Darkenu, the Israel Bar Association, Bar head Amit Becher, the Ometz Movement for Proper Administration and Social Justice, attorneys Yehuda Ressler and Yossi Ha’Ezrachi, Tal Oron and 43 other citizens, and Maj.-Gen. Roni Numa. On Tuesday, the court decided that the final applicant must be identified or must offer an alternative petitioner, by Sunday.
The court can also accept the case amicus curiae or as “friends of the court.” These individuals or organizations are not a party to the case but may provide the justices with vital legal or expert context for the matters at hand. They can file amicus briefs and legal documents which provide their explanations and research.
Two groups have been accepted as amicus curiae – The Association for Civil Rights in Israel together with 37 other human rights NGOs, and the Israel Union for Environmental Defense. On Tuesday, the court ruled it would not be accepting more amicus curiae rejecting 10 applications including those by Im Tirzu, Lavi, the Israeli Law Professors’ Forum for Democracy, and the International Association of Jewish Lawyers and Jurists.
Respondents, those government bodies and officials the petitions are directed against, must present arguments against the petitions before the hearing, addressing their points and why they should be rejected by the court. There are eight respondents to the petitions: the Knesset, the Knesset Constitution, Law and Justice Committee, committee chairman MK Simcha Rothman, the Knesset Foreign Affairs and Defense Committee, the government, the Attorney-General Gali Baharav Miara, Justice Minister Yariv Levin, and Prime Minister Benjamin Netanyahu.
After a request by the attorney representing Netanyahu, Levin, and the government to delay their filing, the date for the respondents to file was changed from September 3 to September 9. Normally the attorney-general represents government officials before the court, but Baharav-Miara said that the difference in opinion of the law was too great, and the event so sensitive and unprecedented, that it demanded the exception of outside representation. Baharav-Miara’s office will still need to file its response to the petitions on September 3. Petitioners will then file their main arguments on September 10.
At the hearing, the petitioners’ legal representatives will be allotted time to make their arguments for why their petitions should be accepted. The respondents will be given a chance to make their arguments, after which the lawyers will give short final responses.
The hearing will be presided over by all 15 justices, which has never been done before.
THE PETITIONERS are making several arguments against the law, which is a basic law amendment. The High Court has never before struck down a basic law amendment, and that it even has the power to do so is hotly contested.
The basic laws are quasi-constitutional legal articles, but their rules and limits are ill-defined. The petitioners will argue that the court has the authority to strike down basic laws, and the respondents will argue against this. The High Court has in the past expressed that they do have the power to strike down basic laws if these violate constitutional norms or the basic Jewish and democratic values of the state.
Petitioners are likely to contend that the amendment is outside constitutional norms because the legislation-enshrined rules for a specific court tool are not the proper purpose for the basic laws. They will also argue that the law was passed through a hasty and improper procedure with a committee bill rather than a private bill, which circumvented a preliminary hearing and a 45-day waiting period.
The court will likely also hear arguments that the reasonableness law is against the democratic values of the state because it removes checks against the government and may allow corruption and arbitrary government actions by removing the requirement to act reasonably.
The argument about the impact of democratic values depends on whether petitioners can convince the court to view the reasonableness law as part of a broader legal agenda, the judicial reform, which they contend upends the entire democratic system of checks and balances, threatens the current human rights regime and centralizes power in the executive branch.
The court may take several weeks to respond to the petitions. They may strike down the law; but since this ability is contested, the government may reject the decision. This may not have an immediate impact, but the next time the court makes a ruling based on reasonable standards, the government may refuse to act, leading to an uncertain legal and political situation – a constitutional crisis.
The different branches of the state and civil service may be unsure of whom to listen to on decisions of reasonableness. A minister who has been appointed by the government, but whose taking on the role is deemed unreasonable by the court may find civil servants uncertain if they can implement their decisions. The court may find officials in contempt, and prosecutors may seek to prosecute politicians violating court orders. A constitutional crisis requires one side to back down or for a new government or court legal reassessment.
THE COURT has multiple options for how to respond beyond just striking or not striking. It may offer an interpretation of the law that creates additional conditions or provisions of the law. In an interpretation that reads down the law, the court could say that the law doesn’t remove the requirement for the government to act reasonably.
They could also argue administrative decisions may be reviewed using a new legal tool such as review for arbitrary and capricious decisions, or expand preexisting judicial review doctrines like proportionality, to also apply to administrative law. The court could also address the procedural problems by sending the law back to the Knesset to fix and undergo further review.
The court could also accept the position of the respondents and reject all the petitions. Yet even with such a decision, the court could use the opportunity of the historic 15-justice bench to establish, in a decision, the rules and regulations for when and how they can strike down a basic law.
Depending on the court’s ruling, it may issue a conditional order and announce an additional hearing in which the respondents must present arguments for why the decision shouldn’t be accepted. Usually, such additional hearings have additional justices added to the bench, but this likely won’t be the case with an already historic assembly.