The Supreme Court Hearing on Reasonableness: Law without Enforcement

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On the question of Unreasonableness, it appears that the dispute is not only between the Knesset and the Supreme Court, but also among the justices themselves. There are many possibilities, but only one ruling, which will be handed down no later than mid-January 2024.

Photo by Yonatan Sindel/Flash90

For more than 13 hours, Israel's 15 Supreme Court Justices heard a case of historic significance. Court sessions have been broadcast live in the past, but this seems to be the first time that a majority of Israelis are familiar with and understand the legal tale that is unfolding. In the months since the launch of the “judicial reform” most citizens have been treated to a detailed civics lesson, grappling with the meaning of democracy and the danger posed by a government that aspires to unlimited power. Had the September 12 hearing been held a year ago, it is doubtful that there would have been special, full-day broadcasts and such intensive public engagement. The public’s command of these dry legal materials and the thorny legal questions today is very different from what it was in the past. This in itself gives us a reason for optimism.

Those who tuned in saw 15 justices in the flesh—professional, experts in the material, and not going easy on either side. There were humorous moments here and there, and it was all transparent. If some had the impression, after listening to the sharp questions directed at the representatives of the Knesset and Government, that “they’re going to invalidate the principle of reasonableness amendment right away,” they thought better as soon as they heard the comments and questions that the justices referred to the representatives of the Attorney General and the petitioners. We should note that this hearing is historic not because the High Court is dealing with a Basic Law—laws with quasi-constitutional status. There have been appeals against Basic Laws in the past. But this is the first time in the country’s history that the Attorney General, whose job is to represent the Government, has effectively joined forces with the petitioners and asked the Court to strike down a Basic Law. This is unprecedented.

Various issues were raised during the hearing, which left behind remarks that will be with us for a long time. The first key question was whether the High Court has the authority to strike down Basic Laws and the source for such authority. The Government’s position was very clear: the Court has no such authority. What was unexpected, however, was the position of the Knesset. Adv. Yitzhak Bart chose not to address the question of whether the High Court has such power and referred on this point to the Government’s position. We should remember that not long ago, the Court ruled explicitly that the Supreme Court is empowered (in extreme cases) to invalidate Basic Laws. Justice Yehiel Kasher challenged Bart on this; he replied that such power exists and a majority of the bench ruled so, but “we in the Knesset believe that there are good reasons to assert that it has no authority.”

The private attorney representing the Government, Ilan Bombach, referred to the source of the Knesset’s power to enact Basic Laws, known as the Harrari decision of 1950, and the Declaration of Independence. By now we are all aware of his assertion that the Declaration of Independence “is no more than a document signed by 37 people”—so that all the explanations that followed about how important it is are futile. This jewel will be with us for many years to come. We should express our appreciation to Bombach, thanks to whom, it seems, we will be treated to a profound public discussion of the status and importance of the Declaration of Independence and perhaps even gain certainty on this matter when the court hands down its decision.

A clear message emerged from the justices’ positions about the amendment in question, which curtails the High Court’s power to review decisions and actions by the Government and ministers based on the standard of reasonableness. The amendment creates a situation in which there is law without enforcement. The Government is legally bound to act in a reasonable fashion, but this duty cannot be enforced if the Supreme Court is stripped of the ability to oversee Government actions and require it to fulfill this obligation. It is as if citizens knew they would not be pulled over or punished for running a red light.

But this is not the only context in which there is law without enforcement. Can the Knesset pass any Basic Law it pleases without any judicial review? The justices asked the Government’s representative whether there is any limit on the Knesset’s power to pass Basic Laws. He replied that indeed there is: the Knesset’s power is limited in matters related to the fundamental values of the State of Israel. There is a law that the Knesset must act in accordance with the principle that the state is Jewish and democratic. But, he added, “only the people can supervise its actions.” In other words, the court cannot impose this limit on the Knesset, because it cannot nullify Basic Laws. Here too the Knesset has an obligation, but there is no one to enforce it: there is law without enforcement.

In the opinion submitted by the Attorney General, she examined the reasonableness amendment in a broad perspective and considered the Government’s intentions in full. “The actual steps taken by the coalition and the declarations by its leaders, including the detailed plan presented by the Minister of Justice in January 2023, indicate that we are in the midst of a broad campaign aimed at effecting a fundamental change in our legal system. What all its elements have in common is the elimination of checks and balances on the Government’s power.”

The Attorney General’s representative at hearing, Adv. Aner Helman, began his presentation by noting that the amendment at issue is only the first in a long series of proposed legislation. “When they say, ‘trust us’—that is precisely when we have to start being careful.” Justice Yitzhak Amit was sensitive to the need to see the full picture and referred to a familiar principle of comparative law: democracies die in small steps. Even if every "slice" of the “salami” is thin, the final result depends on how many slices are cut off.

How the justices will relate to the full picture is an interesting question. Will they examine only the amendment eliminating the principle of reasonableness, or, follow the advice of Prof. Wojciech Sadurski, an international expert on constitutional law and one of the leading researchers of the democratic retreat in Poland? We asked him whether the justices, as part of the current case, may include the other parts of the “reform” in their deliberations. He replied:

My emphatic answer is: yes. Judges have not only a right but also an obligation to look at the broader context of a package of which The Amendment under consideration is only a part. The principle of judicial restraint proclaiming that judges should only answer the question which they are being asked about a specific law under a scrutiny does not commit them to myopia. To pretend that a judiciary-constraining law under scrutiny exists in a normative vacuum would be an act of gullibility which would preclude even the minimum of realism and common sense that we expect of judges.

In conclusion, it seems that the basic dispute is not only that pitting the representatives of the Government and Knesset against the petitioners, nor it is between the Knesset and the Supreme Court. It is among the justices themselves. Their different approaches were evident during the hearing. Despite the criticism of the language of the law, there does seem to be a dispute about whether the reasonableness amendment can be struck down. Some of the justices evidently believe they lack that power. One or more think they have the authority to do so but the amendment is not the extreme case that mandates deployment of this “weapon.” Some wonder whether the amendment can be interpreted in a way that curtails its scope, so that it does not have to be nullified in full. And some cannot abide a situation of a law without enforcement, with the court deprived of an important tool for defending the rule of law, ensuring proper administration, preserving ethical conduct by public servants, and safeguarding human rights—and accordingly feel obligated to strike down the amendment. There are many possibilities, but there will be only one ruling, which will be handed down no later than mid-January 2024.