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Ahead of significant High Court hearing tomorrow, the Jewish nation sits on edge

It is no exaggeration to say Tuesday’s hearing is perhaps the most significant hearing in Israel’s modern history

Anti-overhaul activists protest against government's judicial reform, in Tel Aviv, Sept. 9, 2023. (Photo: Miriam Alster/Flash90)

The High Court of Justice will hold an unprecedented legal hearing tomorrow on the Reasonableness Standard Law with a panel composed of all 15 Supreme Court Justices. 

The hearing, which will be broadcast live, starts at 9 a.m. Israel time and is expected to last a full day, however, the court will not issue a decision at the end of the session.

Because each judge must write up his or her own opinion, the final decision will not be known until all justices have made their submissions.

The Reasonableness Standard Law was passed in a Knesset vote in July and is an amendment to Basic Law: The Judiciary.

The law states that the Supreme Court, including the High Court of Justice, cannot consider the reasonableness of a decision of the government, the prime minister or any other minister. It also restricts the court from issuing orders, including matters of appointments or decisions to refrain from exercising any authority, such as the failure to convene the Judicial Selection Committee. 

A large number of diverse groups have filed petitions against the amendment to the law, from the opposition and protest movement to the Israel Bar Association to retired military officers of the Israel Defense Forces.

Some of the groups say they are against the amendment because it would radically change the structure and nature of the government, giving too much power to the executive branch. 

Attorney General Gali Baharav-Miara published her opinion last week, stating that the amendment should be nullified because it “severely damages the foundations of democratic governance."

She specifically warned that “eliminating the grounds of reasonableness may lead to a breach of boundaries with regard to political appointments and appointments that are deficient in aspects of integrity.” 

The fear is that cronyism and corrupt appointments would become more common if the 'reasonableness standard' is abolished altogether.

The Israeli government, to be represented by a private lawyer since the attorney general is in opposition to the law, argues that because the Supreme Court has treated the Basic Laws as “constitutional” in nature, and used them to decide the constitutionality of other laws, the court is prohibited from ruling against a constitutional law, as it is the highest law in the land. 

This particular argument only exists because Israel, in fact, has no constitution. Some in Israel say tomorrow's hearing demonstrates the need for Israel to formally establish a constitution. Others believe such an effort would take years to accomplish, with intense bickering and arguing among the various parties, and would be unlikely to gain the support of the ultra-Orthodox, who are unwilling to consider any law to be above the Torah. 

While some have predicted a “constitutional crisis” if the amendment is overturned by the High Court, other options remain.

If the High Court chooses to not directly rule for or against the constitutionality of the amendment, which would be problematic in itself, it could decide to send the law back to the Knesset for further discussion and emendation. The court could also rule that one or more parts of the law are deficient, and choose to strike down that portion only. 

The importance of the debate can be understood in light of tomorrow's hearing.

First, the full bench of 15 justices will be present to hear the arguments. This alone is unprecedented in Israel’s history and represents the importance of this court conducting a judicial review of a Basic Law, or an amendment to a Basic Law for the first time in the nation’s history. 

Secondly, the court has changed the normal procedure of the hearing. Typically, petitioners against a law are given the right to present their arguments first, followed by the defenders who present their opposing arguments, and then by a brief chance for the petitioners to respond in turn.

However, for this hearing, the court will allow the government to defend its position first, then the petitioners will argue against it, followed by a short response from the government’s legal advisor. 

The main issue the High Court will essentially need to address is whether or not it should have the authority to exercise judicial review over a Basic Law.

While no final decision is expected tomorrow, the types of questions the justices ask will indicate their position on the matter and will likely dictate the nature of the media coverage until all the final opinions are released to the public.

With Supreme Court President Esther Hayut's retirement next month and Justice Anat Baron retiring four days before that, their opinions are required to be submitted within three months of their leaving their government position, i.e. by mid-January. 

It is not an exaggeration to say that the whole nation will be waiting for their decisions to be released, as they could easily decide the fate of the coalition government and, perhaps, even the nature of future coalitions.

The All Israel News Staff is a team of journalists in Israel.

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