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In first, Israeli Supreme Court strikes down Basic Law

The decision is seen as akin to the American Supreme Court striking down an amendment to the U.S. Constitution.

Then-Supreme Court President Esther Hayut presides over a hearing in Jerusalem on petitions against the “incapacitation law," which imposed restrictions on the government’s ability to claim that the prime minister is unable to fulfill his duties, Sept. 28, 2023. Photo by Chaim Goldberg/Flash90.
Then-Supreme Court President Esther Hayut presides over a hearing in Jerusalem on petitions against the “incapacitation law," which imposed restrictions on the government’s ability to claim that the prime minister is unable to fulfill his duties, Sept. 28, 2023. Photo by Chaim Goldberg/Flash90.

Israel’s Supreme Court on Monday, in an 8-7 vote, struck down the so-called “reasonableness law,” an amendment to a semi-constitutional Basic Law passed by the legislature earlier this year as part of Prime Minister Benjamin Netanyahu’s now-shelved judicial reforms.

The Knesset passed the law in July as an amendment to Basic Law: The Judiciary in what proponents saw as a long overdue measure to restrain judicial activism and bring Israel’s judiciary in line with those of other parliamentary democracies.

The Basic Law in question prevented the courts from using “reasonability” as a pretext to overturn laws. Reasonability essentially means whether the judges consider a law “reasonable”—a standard even opponents of the law agree is vague.

Former Supreme Court president Esther Hayut, who retired from the bench in October but can rule on cases for three months following her retirement, was among the justices voting to invalidate the law. She contended that “the authority of the Knesset in its capacity as a constituent authority is not unlimited, and it is not authorized to enact a Basic Law that denies or directly contradicts the characteristics of Israel’s identity as a Jewish and democratic state.”

In a minority opinion, Justice David Mintz slammed the decision for “undermining basic democratic principles such as the separation of powers,” adding that “annulling a Basic Law based on an amorphous doctrine will carry a heavy price for democracy.”

Israeli Justice Minister Yariv Levin, who spearheaded the government’s reform initiative, said that “the decision of the Supreme Court judges to publish the verdict during a war is the opposite of the spirit of unity required during these days for the success of our fighters on the front.

“The ruling, which is unparalleled in any Western democracy, will not weaken our resolve. As the campaign continues on the various fronts, we will continue to act with restraint and responsibility,” said Levin.

Opposition Leader Yair Lapid said that the ruling “ends a difficult year of conflict that tore us apart from within and led to the worst disaster in our history.

“The source of power of Israel, the basis for Israeli strength, is our being a Jewish, democratic, liberal, law-abiding state,” he continued. “If the government restarts the fight over the High Court, they’ve learned nothing.”

Minister-without-Portfolio Benny Gantz, who heads the National Unity Party, said that “the ruling must be respected, and the lesson from conduct in the past year must be learned. We are brothers, and have a shared fate.”

After the war, “we will need to decide relations between the branches of government and legislate a ‘Basic Law: Legislation’ that will anchor the status of Basic Laws,” added Gantz, vowing to “do so with broad agreement.”

The Supreme Court, sitting as the High Court of Justice, held hearings on petitions against the amendment in September. The hearings marked the first time in the court’s 75-year history that all 15 justices presided over a case.

The Israeli Supreme Court had never before struck down a Basic Law, a move akin to the American Supreme Court striking down an amendment to the United States Constitution.

The Movement for Quality Government in Israel, which has spearheaded the anti-reform protests and was one of the petitioners to the court, hailed the decision as a “historic verdict.

“A government and ministers who sought to exempt themselves from the rule of law have been told that there are judges in Jerusalem; that there is democracy; that there is a separation of powers,” the organization claimed.

Netanyahu’s Likud Party said it was “unfortunate that the High Court chose to publish a ruling at the heart of the societal debate in Israel, precisely when IDF soldiers on the [political] right and left are fighting and risking their lives in the campaign.”

The government had shelved its judicial reform plans as the Jewish state united following the Oct. 7 terrorist attacks by Hamas.

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