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Israeli A-G to Supreme Court: Strike down the ‘reasonableness’ law

The court has never canceled a Basic Law.

Attorney General Gali Baharav-Miara at a ceremony for outgoing Supreme Court Justice George Karra in Jerusalem, May 29, 2022. Photo by Yonatan Sindel/Flash90.
Attorney General Gali Baharav-Miara at a ceremony for outgoing Supreme Court Justice George Karra in Jerusalem, May 29, 2022. Photo by Yonatan Sindel/Flash90.

Israeli Attorney-General Gali Baharav-Miara on Sunday asked the Supreme Court in Jerusalem to strike down a semi-constitutional amendment limiting judges’ ability to overturn laws based on what they consider “acceptable,” exacerbating existing tensions with Prime Minister Benjamin Netanyahu’s government.

In her filing to the court, Baharav-Miara claimed that “due to the severe impact of the amendment on the public and the serious consequences for the separation of powers, the rule of law and individual rights,” she had no choice but to support declaring the legislation null and void.

On July 24, all 64 lawmakers in the governing coalition voted into law a bill to restrict judges’ use of the “reasonableness” standard. The amendment to Basic Law: The Judiciary bars “reasonableness” as a justification for judges to reverse decisions made by the Cabinet, ministers and “other elected officials as set by law.”

NGOs immediately filed petitions asking the Supreme Court, sitting as the High Court of Justice, to strike down the law. While the court scheduled a hearing, it has not gone as far as to issue an emergency injunction against the law as several of the petitioners had requested.

“We are ready. We will appear at the Supreme Court to defend Israeli democracy and do everything we can to stop the judicial coup,” the Movement for Quality Government’s Chairman Eliad Shraga said at the time. “We will continue to protest and fight everywhere and from every podium until the threat is removed.”

The hearing is scheduled for 10 a.m. on Sept. 12, three days before the start of the High Holidays. It will be the first time in the court’s 75-year history that all 15 justices will preside over a case.

In response to Baharav-Miara’s filing, an attorney for Justice Minister Yariv Levin asked that the hearing be delayed to early October.

“The attorney general’s response is really a move to bolster and strengthen the petitioners,” coalition lawyer Ilan Bombach noted, stressing that Baharav-Miara’s position does not represent the government’s view and “is extreme to the utmost.”

Defense Minister Yoav Gallant has gone on the record as saying that the government would accept a ruling to cancel the law. “Israel is a democratic, law-abiding country. We’ll act according to the law,” Gallant told journalists two months ago.

The Israeli Supreme Court has never struck down a Basic Law, a move that would be akin to the American Supreme Court striking down an amendment to the United States Constitution.

Baharav-Miara has endorsed the judicial review of Basic Laws in recent months. In July, she informed the Supreme Court she opposes the so-called recusal law barring justices from declaring a sitting premier unfit to serve and thus forcing him to take a leave of absence.

In Israel, the attorney general serves as the legal advisor to the government and its representatives in legal proceedings. The attorney general is a professional appointee who serves a six-year term regardless of whether the government changes.

As such, the attorney general is not necessarily politically aligned with the prime minister or the governing coalition. If the attorney general disagrees with a law or policy, then he or she may issue an opposing legal opinion.

In related news, Baharav-Miara on Sunday approved a request by Levin that he be allowed to use independent legal counsel to represent his position in an upcoming hearing over his refusal to assemble the Judicial Selection Committee.

On Sept. 7, the Supreme Court, sitting as the High Court of Justice, will hear arguments demanding that the panel, which is responsible for appointing new judges to the courts, be convened immediately.

Levin’s request to use outside counsel came days after he accused Baharav-Miara of actively working against the coalition’s policies, failing to confer with Cabinet ministers regarding court proceedings and destroying the working relationship between the government and the Attorney General’s Office.

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