The recent decision by the High Court of Justice to strike down the Law to Cancel the Reasonableness Standard has generated public debate. According to Prof. Shahar Lifshitz of Bar-Ilan University, the landmark ruling is to be commended for empowering the High Court to strike down Basic Laws that undermine Israel’s identity as a Jewish and democratic state. However, he questions whether an outright annulment was necessary.
The invalidated law marked the first time the court struck down a Basic Law, with eight justices opposing the law compared to seven in support.
Moreover, the majority opinion of 12 out of 15 justices confirmed the court’s authority to conduct judicial review of Basic Laws and intervene in exceptional cases where the Knesset oversteps its powers.
Why should the High Court not have struck down this Basic Law?
Lifshitz recognizes the need for the court’s ability to strike down laws that undermine Israel’s core principles, but argues that annulment should not be the default solution.
He disagrees with the majority decision to annul the Basic Law in this specific case, because despite its flaws, the law does not fundamentally undermine Israel’s Jewish and democratic character. From a tactical standpoint, he suggested that the court could have adopted a more moderate approach, such as granting the law a limited and consistent interpretation alongside expanding administrative grounds available to the court.
Looking ahead, Lifshitz cautioned against prematurely celebrating the anti-judicial reform camp’s “narrow victory” in court, stressing that, particularly in the aftermath of the ruling, Israeli society needs healing and reconciliation.