Today, January 1, 2023, the Israeli Supreme Court issued an important decision repealing the Basic Judicial Law (Amendment No. 3), which abolishes the standard of reasonableness that the court can use during judicial oversight of government decisions.
This law was enacted by the government as part of a package of laws that the government wishes to enact in order to carry out “reforms” in the judicial system, as it claimed. But it soon became clear that the goal behind the alleged judicial reforms was not to reform the judicial system as it claimed, but rather to undermine it and prevent it from conducting real and effective judicial oversight of the government’s decisions, so that the government can work in absolute freedom and without anyone monitoring its steps, which contradicts The foundations and principles of the democratic system and the principle of separation of powers.
The standard of reasonableness was one of the standards developed by the Supreme Court for judicial oversight of government decisions. It should be noted here that the aforementioned standard was not created in the Israeli judiciary, but rather is used in different countries in the world, such as America and other countries, and is known as the “reasonability” standard.
According to this standard, the court can, during its judicial oversight of the decisions of the government or its employees, invalidate its decisions if it reaches the conclusion that the decision reached by the government is unreasonable for various reasons proven before the court. This standard was an important restriction on the government’s decisions and actions, as this standard prevents it from making its decisions arbitrarily and requires it to think carefully before making a decision and to act reasonably. Otherwise, the court can cancel the decision.
The judicial reforms that the government began to implement were aimed at two things, both of which weaken the foundations of the democratic system followed in the country and weaken the Supreme Court. The first is to influence the composition of the members of the Supreme Court by changing the composition of the judges’ appointment committee so that the government has a greater role in appointing judges, which enables it to influence the composition of the members of the court in a manner consistent with the government’s programs. The second matter is to undermine the power and status of the Supreme Court by taking away some of the means that the Supreme Court has in order to conduct judicial oversight of the government’s decisions, such as the standard of reasonableness that we mentioned above.
The government’s plan to make judicial amendments of this kind led to boiling within the Israeli street and to unprecedented demonstrations throughout the country demanding an end to such alleged and undemocratic “reforms.” However, the government continued its plan and enacted the first law of the package of amendments despite the large demonstrations that swept the country and led to a major division among the Israeli people. The aforementioned law stipulates the abolition of the reasonableness standard, which prevents the court from conducting judicial oversight of the government’s decisions in accordance with this standard.
In order to prevent the court from abolishing the aforementioned law, the government deliberately enacted it as a basic law, meaning that it is part of the constitution. The State of Israel does not have an official constitution like other countries, but rather a set of basic laws that the Supreme Court considered in previous decisions to be chapters of the state’s constitution that has not been fully completed. Therefore, the government deliberately enacted the law as a basic law, believing that the court would not repeal it because it is a basic law.
After the enactment of the aforementioned law, numerous petitions were submitted to the court to abolish the aforementioned law. The court heard the aforementioned petitions with an expanded composition of fifteen Supreme Court judges. Today, the Supreme Court issued a decision to abolish the law.
As for the constitutional issue, which is the court’s power to repeal basic laws despite them being part of the country’s constitution, the court decided by a majority of 12 out of 15 members that the court has the power to repeal basic laws in exceptional cases when these laws or amendments affect the basic characteristics of the state. As a Jewish and democratic state.
As for the reasonableness law itself, the court decided to cancel it by a majority of 8 members out of 15, considering that the law violates the basic principles of democratic law and the principle of separation of powers.
There have been attempts in recent days to prevent the court from issuing its decision as a result of the ongoing war, claiming that the decision raises discord and affects the unity of the people during wartime.
In fact, these allegations were aimed at preventing the court from publishing its decision after it was revealed before its issuance in the Israeli media, which constitutes a dangerous precedent. These attempts would have led to changing the outcome of the decision, as two members of the Supreme Court, the former president of the court, Judge Hayut, and Judge Baron, had ended their term in the Supreme Court. Therefore, postponing the issuance of the decision will prevent them from making their decision, which may lead to changing the outcome of the decision. Accordingly, the Supreme Court rejected these attempts and issued its decision despite demands to postpone it due to the ongoing war.
The decision was issued in File No. 23/5658, Movement for Integrity of Governance in Israel v. The Knesset and others.
Below is a summary of the Supreme Court’s decision in Hebrew:
Below is a full copy of the Supreme Court’s decision in Hebrew as a PDF file
Below is a full copy of the Supreme Court’s decision in Hebrew as a Word file
