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Israeli High Court prepares to strike down Basic Law

According to leaked drafts, the judges will vote 8-to-7 to nullify the "reasonableness law."

Former Supreme Court President Esther Hayut (center) arrives for a hearing in Jerusalem, Dec. 8, 2022. Photo by Olivier Fitoussi/Flash90.
Former Supreme Court President Esther Hayut (center) arrives for a hearing in Jerusalem, Dec. 8, 2022. Photo by Olivier Fitoussi/Flash90.

The High Court of Justice is about to invalidate a Basic Law. The court has never struck down such laws before, which until recently had been considered immune to court interference.

According to leaked drafts of the opinions of the 15 justices, the result is 8-to-7 in favor of nullifying the “reasonableness law.”

Each judge will now read the opinions of the other justices before a final decision is reached. There is a chance, though slim, that the result will be different if a justice changes his or her mind after reading the other verdicts, Channel 12 reported.

The High Court held hearings on the law in September. The Basic Law in question prevents the court 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).

The Knesset passed the law in July as an amendment to Basic Law: The Judiciary precisely to protect it from the court’s meddling.

Basic Laws are thought of as having greater weight than regular laws. The court treats Basic Laws as a constitution-in-the-making giving it the power to strike down Knesset legislation.

Opponents of the court’s behavior argue that it’s as if the U.S. Supreme Court would strike down constitutional amendments.

“I hope the Supreme Court [sitting as the High Court of Justice] will come to its senses; there are many things that can be done but the most correct thing is not to deal with it now,” Simcha Rothman, chairman of the Knesset Constitution, Law and Justice Committee, told JNS, adding that no decision of such import should be made while the country is at war.

Justice Minister Yariv Levin also called on the court to refrain from handing down during wartime “a ruling that is controversial even among its judges.

“While our soldiers are fighting alongside each other on different fronts, and at a time when the entire nation is in pain over the loss of many soldiers, the people of Israel should not be split apart with disputes,” Levin said.

“The damage outweighs any possible benefit,” agreed Rothman, who with Levin is a chief architect of judicial reform.

Some of the justices criticized retiring Justice Esther Hayut, who pushed them to reach a decision in an extraordinarily tight time frame and shortly before she leaves the bench in two weeks, according to Channel 12.

Hayut served as president of the court until she reached the mandatory retirement age for judges of 70 on Oct. 16, and can rule on cases for an additional 90 days from that date.

The judges’ criticism gains significance in view of the fact that also retiring is Justice Anat Baron, who sided with the majority. Without their votes, the result would be 7-6 against the law’s nullification, the report noted.

“I hope that the court will show responsibility and not drag Israel back into these quarrels. I can say for myself that even if the other side behaves irresponsibly, I will continue with my fellow members in the Knesset to act responsibly,” Rothman said.

The government’s judicial reform plan led to a societal rift as thousands protested between January and October against the reform, holding “days of resistance,” disrupting traffic, clashing with police and demonstrating in front of politicians’ homes, claiming the reform was a “threat to democracy.”

The Netanyahu government said the reform wasn’t a threat to democracy but would strengthen democracy as the left-wing court had overstepped its bounds and upset the balance of powers, challenging, undermining and taking for itself legislative and executive powers.

Both sides put judicial reform aside as the nation united following the Oct. 7 attack by Hamas.

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