In a Historic Decision for Israeli Democracy, the Supreme Court Preserves the Reasonableness Doctrine

On January 1, 2024, the Israeli Supreme Court handed down a landmark decision upholding the reasonableness doctrine, a key pillar of judicial review. In doing so, it struck down the only component of the current government's attempted legal coup that passed in the Knesset. This is the first time in Israel’s history that the Supreme Court has struck down a Basic Law, a type of legislation that is supposed to function as Israel’s constitution.

Background

Although Israel's Declaration of Independence promised to approve a constitution by October 1st, 1948, it failed to do so. Instead, in 1950, the First Knesset decided to enact “Basic Laws”, which together would function as Israel’s constitution. The Basic Laws it passed over the years set out basic governmental powers and institutions, including the Knesset, the Executive, the Judiciary, and the Presidency, as well as the military and other functions. But to this day, Israel's democracy operates without a comprehensive constitutional framework.

Unlike other constitutions, Basic Laws can be enacted and amended as if they were regular laws with a simple majority of Members of Knesset. Only a few clauses require a special majority. As such, although their status is supposed to be different from that of regular laws, the Knesset can simply label any legislation a Basic Law, granting it quasi-constitutional status, even if passed with a single-vote majority.

In 1992, the Knesset passed two Basic Laws dealing with human rights – Basic Law: Freedom of Occupation; and Basic Law: Human Dignity and Freedom. These laws state that any subsequent legislation that violates them will only be valid under certain conditions. In 1995, the Supreme Court ruled that it has the power to strike down laws that contradict Basic Laws without meeting the required criteria. This is similar to the US Supreme Court case of Marbury v. Madison, which established the principle of judicial review in the American system 220 years ago. Despite contentions by those supporting the government's legal coup, the Israeli Supreme Court has exercised this authority very selectively, only striking down 22 laws since 1995.

Up until yesterday, the Court had never struck down a Basic Law. In 2021, it discussed the possibility of striking down a Basic Law over the question of the Nation State Law's constitutionality. In that case, the Court decided that although it has the authority to annul a Basic Law that gravely violates the very notion of Israel as a Jewish and democratic state, the Nation State Basic Law did not do so to a sufficient extent.

The Reasonableness Doctrine and its Attempted Abolition

According to the reasonableness doctrine, the Supreme Court, as well as lower courts, can intervene in government and ministerial decisions that fail to consider all relevant factors as failing to meet the standard of reasonableness, thus preventing cases of corruption, conflict of interest, and improper bias. The Court seldom uses this authority. On average, it has struck down a mere 1.6 decisions a year based on this standard.

Since its inauguration on December 2022, the current government has been pursuing a dangerous legislative agenda, a "legal coup" that seeks to prevent the Supreme Court from striking down discriminatory and anti-democratic laws or intervening in problematic government decisions, thus giving the government (which controls the Knesset) unrestricted power with no effective checks and balances. In July 2023, the Knesset passed the first component of its legal coup, abolishing the reasonableness standard, thus rendering government and ministerial decisions immune from judicial review. This was done by amending the Basic Law: The Judiciary. The law was pushed through the Knesset in a process that took only one month. Discussions in the Constitution, Law and Justice Committee, chaired by MK Simcha Rothman, were conducted in a manner that did not allow for full and open participation by the law’s opponents. It was then passed with a majority of 64 MKs out of a total 120. This is hardly the kind of consensus that should be required to change the basic structure of governance.  

The Petitions

Eight petitions were submitted to the Supreme Court arguing that this law shields government and ministerial decisions from judicial review. It therefore gravely infringes upon the basic democratic nature of the State of Israel, jeopardizing the separation of powers, the rule of law, and human rights, while allowing corruption regarding elections and appointments. The petitions also stated that the Knesset had abused its constitutional power, since this law should not have been part of the constitution.

The Court Hearing

On September 12, 2023, the Supreme Court heard the eight petitions in an extended session that lasted a full 13 hours. Normally, the Court sits in panels of three justices, while in a select number of important cases, it sits in panels of 5, 7, 9, or 11 justices. This was the first time in Israel’s history that a full panel of all of the Court's 15 justices heard a case. The discussions were captivating, touching on the entire constitutional history of Israel going back to Ben Gurion and the Israeli Declaration of Independence. 

The Attorney General refused to represent the government, siding with the petitioners that this was a case where the Supreme Court should, for the first time, strike down a Basic Law due to the dangers it poses to the rule of law and Israel’s democracy.

The Timing of the Court’s Ruling

The last date the Court could have published its ruling was January 12, 2024, since two of the panel’s members, Chief Justice Hayut and Justice Baron, reached the statutory retirement age in October 2023. According to the law, justices can hand down decisions for up to three months after their retirement.

However, on December 27, 2023, a draft of the Court’s decision was leaked to the Israeli media through a television journalist sympathetic to the government. In response, the proponents of the legal coup criticized the Court for intending to publish its decision in wartime, despite the timing being dictated by law. The ultra-Orthodox Shas party announced its intention to change this law in order to postpone the publication of the decision, an initiative clearly attempting to undermine the decision as it was leaked. As a result, the Court published its decision earlier than planned, on January 1, 2024.

The Court’s Ruling

In its historic decision, the Supreme Court struck down a Basic Law passed by the Knesset for the very first time.

On the principal issue, 13 out of the 15 Supreme Court justices ruled that the Court has the power to strike down Basic Laws in exceptional and extreme circumstances.

On the specific issue of the reasonableness doctrine, eight justices voted that the government's law abolishing it should be struck down, since it violates the basic principles of Israel’s democracy: separation of powers and the rule of law. Three justices interpreted the law narrowly, voting not to abolish the unreasonableness doctrine completely, but to allow the Court to invalidate government decisions it determines are "extremely unreasonable". Only four justices held that the Court should not intervene at all in this case.

What’s Next? Will the Government Abide by the Court’s Decision?

Since war broke out on October 7th, the legal coup has seemed effectively off the table. However, it is not clear whether in the wake of this ruling the government will resume its dangerous legal coup to undermine the independence of the Supreme Court and restrict its authority.

It should be noted that according to the current coalition agreement between the ruling Likud party and Benny Gantz’s National Unity party, an opposition party that joined an emergency government only for the duration of the war, bills pertaining to the legal coup will not be promoted during its tenure.

It remains to be seen how the government will respond, whether it will try to pass a different version of the law that the Court struck down. Furthermore, until a case arises in which the Court determines that a government or ministerial decision fails to meet the standard of reasonableness and invalidates it, we won't know whether the government will respect the Court’s decision and its power to strike down unreasonable decisions.

The Response of the Israeli Reform Movement

The Israeli Reform Movement, one of the leading voices against the legal coup, expresses resounding support for the ruling. It reaffirms the Court’s critical role in safeguarding Israel’s democratic values and protecting its citizens from undue government overreach. As we have seen with discriminatory legislation and policies, unchecked government power poses a direct threat to fundamental human rights. Respecting this ruling is not simply a legal obligation, but an essential step towards ensuring a just and inclusive society for all Israelis. Especially in times of conflict, it’s crucial to remember that what unites us is our commitment to Israel as a Jewish and democratic state where human rights are protected under the watchful eye of the Supreme Court. In the face of external threats, let us not be divided, but stand together to protect the democratic future we aspire to for all Israelis. Come what may, we will continue to protect Israeli democracy in the name of Judaism.