What Was the Supreme Court’s Ruling on the Revocation of the Reasonableness Doctrine? Eight Key Points
The Supreme Court's ruling to strike down the amendment made to the Basic Law: The Judiciary and reinstate the Standard of Reasonableness is a landmark decision on an issue that has been exceptionally divisive within Israeli society. Will this lead to a constitutional crisis? 8 Key points from IDI's experts examining the court's decision.
Photo by Chaim Goldberg/Flash90
In a majority ruling (supported by twelve of the fifteen justices), the Court ruled that it has the power to perform judicial review of basic laws and to intervene in exceptional and extreme cases in which the Knesset exceeds its constituent powers. In addition, the Court decided (in a majority ruling by eight of the fifteen justices) to strike down the amendment to the Basic Law: The Judiciary, by means of which the Knesset sought to revoke judicial review of the reasonableness of government decisions.
An overwhelming majority of the Supreme Court panel ruled that the Court has the power to strike down basic laws. Some members of this majority based their decision on Israel’s unusual constitutional structure, which features (among other things) a lack of any separate dedicated procedure for setting constitutional norms; on the problematic practice of passing and amending basic laws with relative ease, indicating that they are treated as having low value and have become a pawn in the hands of the parliamentary majority; and on the Court’s role in defending the constitutional project.
Regarding the current concrete case, the majority opinion was that revoking the reasonableness doctrine constitutes severe and unprecedented harm to the core characteristics of the State of Israel as a democratic state, and in particular to the principle of separation of powers and to the principle of the rule of law. This is because the unusual and far-reaching formulation of the amendment to the basic law would prevent all courts from discussing or hearing petitions regarding the reasonableness of any decision, including decisions to refrain from using powers, and even decisions that are baseless and unreasonable to an extreme degree. The majority opinion also referred to the fact that revoking the reasonableness doctrine would leave entire areas of government activity without any effective judicial review, would do away with defenses against corruption in the public sector, and could also lead to severe harm to the independence of the law enforcement system, as well as to improper use of government resources during election campaigns.
The minority (seven justices) who did not concur with the verdict did not all share the same reasoning.
Two justices (Sohlberg and Mintz) disagreed with the ruling that the Supreme Court has the power to apply judicial review to basic laws. Furthermore, in their opinion, the amendment would not have justified such an intervention even if the Court did have the power to intervene.
Three justices (Willner, Stein, and Canfy -Steinitz) held the opinion that a narrower interpretation of the amendment to the basic law could be made such that it would be one of those cases in which the Knesset could be said to have exceeded its constitutive powers, and thus there was no basis to intervene in this case.
A sixth justice (Kasher) held that even without using a narrower interpretation, the amendment was far from the threshold that would justify Supreme Court intervention in a basic law.
The seventh justice (Elron) was willing to adopt an exception that would allow intervention in basic laws in extreme cases of harm to fundamental individual rights, but in his opinion, if the Court is allowed to intervene in the particular case of this amendment, then this would open far too wide a door for Supreme Court intervention. Furthermore, his opinion was that the arguments made against the amendment were not sufficiently ripe to be ruled on.
Four justices (Willner, Stein, Canfy-Steinitz, and Kasher) agreed with the opinion of the majority (President Emeritus Hayut, Acting President Vogelman, and Justices Amit, Barak-Erez, Baron, Grosskopf, Kabub, and Ronnen) that the Court has the power in principle to intervene in basic laws, in exceptional and extreme cases in which the Knesset has exceeded its constituent powers. The ensuing difference between twelve justices supporting this view and only eight justices ruling that the current amendment should be struck down stems from the fact that four justices hold that this amendment is not one of those extreme cases that warrants the intervention of the Court.
The significance of this discrepancy is that a large majority of the Supreme Court (twelve out of fifteen justices) holds that the constituent power of the Knesset to legislate basic laws is limited, and that the Supreme Court has the power to apply judicial review and intervene with regard to the content of basic laws in exceptional and extreme cases in which the Knesset exceeds its powers.
This precedential ruling may also affect other cases in which claims of unreasonableness were made against decisions by the government, a minister, or the prime minister. These cases have been pending while awaiting the Supreme Court decision on the reasonableness doctrine. They include a petition against the appointment of MK Itamar Ben-Gvir as minister of national security, on the basis of unreasonableness. In the future, the verdict may also affect petitions against the validity of basic laws and amendments to them.
On the other hand, the verdict had no substantial impact on the ruling regarding the Incapacitation Law (which amended the law governing the ways in which a prime minister may become incapacitated, or unfit to serve), which was meanwhile decided by the Court, as the Supreme Court decision did not relate to striking down the amendment about incapacitation. Its only effect was that this amendment will only come into effect in the future and based on a different legal doctrine. Thus, the precedent regarding the power to strike down a basic law was not relevant to this case.
Yes, the Knesset can pass a softer amendment that will regulate judicial review of government decisions by the Supreme Court using the extreme unreasonableness doctrine. It is possible that such an amendment would be supported by a large majority in the Knesset. However, it would be more sensible to make such amendments as part of a broader and balanced approach that would also include requiring a large majority for the legislation of basic laws, so as to prevent changes being made by a narrow coalitionary majority, as well as add adding constitutional rights that are currently missing. The plan put forward by the president proposed just such an approach.
As always, at the current time, it is to be hoped that the fundamental principles of democratic rule are maintained and that the government respects the Supreme Court ruling. If the government behaves in this manner, a constitutional crisis is unlikely. However, if the government decides not to respect the verdict and does not view itself as subject to judicial review with regard to decisions by the government or its ministers which the Court rules to be extremely unreasonable, then a constitutional crisis may indeed develop.
The independence of the legal system and its ability to perform judicial review of the government are a key tool for Israel in its representations to international proceedings. For example: The greater the extent to which the Israeli legal system is independent and has the power to review the government’s actions, the less likely it is that foreign states or international judicial institutions will take it upon themselves to investigate claims of infractions of international law by IDF soldiers. The verdict bolsters the independence of the legal system and its ability to review government policy, and in this sense, it helps Israel avoid future claims against it.