Israel faces constitutional crisis in historic High Court hearing

Religious Zionist MK Simcha Rothman’s legal representative Avi Segel said in a closing response that in contrast to those acting like there will be an “apocalypse,” Israel was a democracy prior to the reasonableness standard.

Dr. Eliad Shraga, head of the Movement for Quality Government in Israel, opened the arguments of the petitioners against the reasonableness law on Tuesday, presenting the legislation as part of a broader agenda.

The agenda of the government, including the judicial reform, was to ruin the democratic system of Israel with laws like the police law and the laws that sought to allows Shas Chairman Arye Deri to be appointed minister despite his past criminal convictions.

Justice Noam Sohlberg asked for specific examples of how the laws disrupted Israel’s democratic system. Court President Esther Hayut said that they were reviewing a specific law.

“You can’t ignore the broader picture,” said Shraga. “The story is that they want to ruin the judicial system.

The High Court hearing of the government's judicial reform reasonableness bill on September 12, 2023 (credit: YONATAN SINDEL/FLASH90)

The power of the Knesset as a constituent authority was traced by Shraga back to the Declaration of Independence. He argued that while others were speaking to the right of the court to strike down basic laws, he said that he was arguing that the authority of the Knesset to pass basic laws violating Israel’s democratic principles had to be questioned.

Attorney-General Office’s representative Aner Helman argued on Tuesday for the authority of the High Court of Justice to strike down the amendment to Basic Law: The Judiciary that limited the reasonableness standard.

Helman said that there were limits to the Knesset’s authority to pass quasi-constitutional basic laws. It was a given in the system laws could not be passed that violated the state’s status as a democratic and Jewish country. He disagreed with statements made by attorney for the government Ilan Bombach that the people would be the check to unacceptable basic laws, saying such things caused worry.

In just this year, three basic law amendments were passed, whereas in the US it had been decades since the last constitutional amendment. 

There were checks to the government’s ability to pass any basic law it pleased, and to ensure it didn’t abuse its authority.

The High Court hearing of the government's judicial reform reasonableness bill on September 12, 2023 (credit: YONATAN SINDEL/FLASH90)

Lack of legislation rules requires High Court intervention

The lack of clarity on the boundaries on basic laws came from the Knesset’s failure to pass Basic Law: Legislation to establish the rules for the articles.

The gap of Basic Law: Legislation was filled by Basic Law: The Judiciary, which vested the Supreme Court with the powers of a High Court to rule on state actions and constitutionality.

Sohlberg challenged whether need in the field created authority. Hayut pushed Helman to demonstrate the extreme nature of the law, saying that it was not every day that a basic law was struck down.

השופט עמית: "דמוקרטיה מתה בצעדים קטנים", גוטליב התפרצה בצעקות. צפו pic.twitter.com/h0sOEovFBH

— החדשות - N12 (@N12News) September 12, 2023

Ilan Bombach, the attorney representing the government, continued his statement by claiming that the Knesset was supported by the majority will. Amit questioned if in a democracy a majority could do anything it wanted, to which Bombach said that the protection of minorities was essential.

The justices challenged how the minorities were protected if not through judicial review, but Bombach said he was there to defend the reasonableness law, which had nothing to do with human rights.

Bombach’s lengthy arguments were cut short by the court, who said there was limited time.

“So maybe we should have another hearing?” Grinned Bombach.

Government attorney Ilan Bombach compared the use of judicial review against basic laws to a nuclear weapon, and cautioned its use. 

“We aren’t talking about an extreme situation,” said Bombach, which warranted its use.  

Bombach complained that the focus of the deliberations had become on the status of basic laws, which should have been given its own hearing.

High Court President Esther Hayut argued on Monday that the reasonableness law restricted all courts, not just the High Court, from helping the public.

Likud MK Tally Gotliv temporarily disrupted the High Court hearing in an outburst in response to Justice Yitzhak Amit's comment saying "democracy dies in small steps."

Justice Yitzhak Amit said that democracy doesn’t usually die all at once, “democracy dies in small steps.”

Ilan Bombach, the attorney representing the government, Prime Minister Benjamin Netanyahu, and Justice Minister Yariv Levin challenged whether it was the authority of the court to Basic Laws. He said that the court has always been an interpretive body, and this amendment had such a clear text, there is nothing to interpret.

The court asked Bombach from where the source of the Knesset's constituent authority was derived.

Bombach said that the Harari compromise sanctioned the Knesset to establish constitutional articles in incremental chapters. 

Bombach: Declaration of Independence does not give authority to judicial review

"It can't be said that the signatories to the Declaration of Independence gave you the authority for judicial review," said Bombach. 

The signatories were not representative of the populace, so they had no authority to establish something that would be a constitution. The court's authority comes from the constituent authority's legislation.

The government respects the Declaration of Independence, said Bombach, but ultimately its authority to introduce basic laws comes not from the declaration, but the will of the people.

Constitution, Law and Justice Committee head and Religious Zionist MK Simcha Rothman argued that every time the law interfered in the legislation and decisions of the Knesset it crossed into the auspices of governance and expanded its own power.

Speaking at the historic High Court hearing on Tuesday, Rothman argued the court was overruling the democratic will of the people to choose their elected officials. This comes though public trust in the Supreme Court has decreased over the years, but trust in the Knesset has remained.

Rothman said that if the court had respected the separation of powers and legal and academic opinions over the years, there would have been no need for this basic law amendment.

Hayut, Rothman face-to-face

Supreme Court President Esther Hayut challenged Rothman on what recourse the public would have against excessive government administrative decisions. Rothman said that the conversation should be held in the Knesset.

The petitioners are pushing the court to violate the basic democratic structure, said Rothman, and the justices shouldn't strike the law and rule the democratic system.

The justices and Rothman engaged in a harsh exchange of words, when Rothman said refered to them as "priveleged elites" that are concerned with preserving their own status. Hayut shot back that they were not concern about their own status, but the interest of the public.