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Government tells High Court nullifying ‘reasonableness’ law will result in ‘anarchy’

The court nullification of a Basic Law will lead Israel to anarchy, the government said in a response submitted Friday to petitions calling on the High Court of Justice to strike down the first piece of legislation passed as part of the government’s judicial overhaul: the “reasonableness” law.

An unprecedented full 15-justice panel of the High Court is slated to hear the petitions against the law on September 12, next week. A variety of government ministers and other figures have warned of the potential for chaos if the court strikes down a law passed by the Knesset to curb the court’s authority, setting up a potential constitutional crisis.

In its brief, the government argues that the court lacks statutory authority to annul Israel’s quasi-constitutional Basic Laws, and therefore any such verdict would be based on unlegislated and unclear “basic principles.”

“All government institutions may argue that they have the right to determine what these principles mean. It is a short path from here to anarchy,” the brief said.

In a statement following the submission of the response — which was written on behalf of the government, Prime Minister Benjamin Netanyahu and Justice Minister Yariv Levin — Levin said the government “believes that since the State of Israel is a democratic nation, the authority of governmental institutions and its origin are vested in the sovereign, which is the people – the citizens of Israel,” who elect the Knesset.

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Because of that, Levin added, “the authority and its origin reside in the principles set by the Knesset, in the Basic Laws, and nothing stands above them.” In a nation governed by the rule of law, the justice minister continued, “no institution or individual stands above the law. And if the law, according to the doctrine developed by the esteemed court, is subject to the Basic Laws, then no institution or individual stands above the Basic Laws,” the statement continued.

Illustrative: The High Court of Justice convenes in Jerusalem to discuss the potential evacuation of the West Bank outpost of Homesh, January 2, 2023. (Yonatan Sindel/Flash90)

The government brief was submitted on Friday alongside the Knesset attorney general’s response to the petitions, with both largely overlapping in their arguments. Notably, the government was given permission by Attorney General Gali Baharav-Miara to seek private representation because of Baharav-Miara’s opposition to the “reasonableness” law, and the rhetoric of the government brief is in turn noticeably sharper than that of the Knesset brief.

Both responses address the main legal arguments given in favor of striking down the amendment to clause 15 of Basic Law: The Judiciary, which removes the court’s authority of exercising judicial review on administrative decisions made by ministers based on the standard of reasonableness.

In response to petitioners’ claims that there were flaws in the bill’s legislative process, the Knesset’s legal council admitted that the process led by Religious Zionism MK Simcha Rothman was problematic. But the brief also argued that the legal doctrine which allows for judicial review of legislation on procedural grounds does not technically apply in this case, also arguing that the court has no authority to rule on a Basic Law.

Opposition leader Yair Lapid responded by casting doubt on the status of the recent legislation as an actual Basic Law.

“As those who were in the Knesset Constitution Committee and in the plenum during the legislating know, the ‘reasonableness’ law isn’t really a Basic Law,” Lapid wrote on X. “It was not legislated like a Basic Law, its legislative process was rushed, negligent, hysterical and bulldozing, with personal motivations behind it — and the procedure was entirely flawed.”

Unlike constitutional amendments in some other democracies, the process for legislating Basic Laws, a category of statutes which the court recognized as possessing constitutional status in 1995, is the same as other bills, with no special majority needed.

Both the government and the Knesset responses to the High Court denied that the doctrines which would in theory allow the court to nullify a Basic Law (labeling it either “an unconstitutional constitutional amendment” or an “abuse of constituent power”) do not apply in the case of the “reasonableness” law, with the government brief saying that judicial review of Basic Laws is fundamentally forbidden despite existing case law saying otherwise.

Supreme Court President Esther Hayut and Justice Minister Yariv Levin attend opening of a new courthouse in Katzrin on June 1, 2023. (Michael Giladi/Flash90)

The “reasonableness” law prohibits the courts from reviewing government action using the judicial standard of reasonableness, whereby it can determine that a decision was invalid because it was made without properly assessing key considerations, or while using improper considerations.

Opponents of the law argue that it could potentially undermine the independence of senior law enforcement agencies, since without the reasonableness standard it will be difficult to challenge arbitrary dismissals of officials.

Ministers and coalition MKs have argued that the law is necessary to stop the High Court from asserting its own worldview on government decisions and actions, and have said that the dismissal of senior law enforcement officials will still be subject to other tools in administrative law.

The law is the only component of the coalition’s broader judicial overhaul program which has been passed by the Knesset so far. Like other parts of the radical reform agenda, it has faced massive opposition from protest groups and opposition parties.

A court ruling striking down a Basic Law would be unprecedented. Members of the government’s coalition have been noncommittal as to whether they would abide by such a ruling, thereby potentially causing a constitutional crisis.

Most recently, Knesset Speaker Amir Ohana said in a speech on Wednesday that the coalition will not accept the voidings of Basic Laws. Prime Minister Benjamin Netanyahu retweeted a video of the speech.