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Knesset speaker signals coalition won’t accept High Court voiding of Basic Laws

Knesset Speaker Amir Ohana on Wednesday suggested the coalition may not accept a potential High Court of Justice ruling next week to nullify the so-called reasonableness law, warning such a decision could “plunge us into the abyss” and that the Knesset “won’t submissively allow itself to be trampled.”

Ohana made the remarks during a press conference convened at the Knesset ahead of a September 12 hearing on petitions against the law, part of the government’s controversial judicial overhaul, which bars courts from intervening in government and ministerial decisions based on their “reasonableness.” Later, a separate hearing will be held on petitions against a law shielding prime ministers from forced recusal.

Both pieces of legislation are amendments to Israel’s quasi-constitutional Basic Laws, which the country’s top court has never voided. The process for legislating Basic Laws is the same as other bills in Israel’s unicameral parliament, with no special majority needed.

“Israel is at a crossroads, and the need to balance the branches of government is becoming clearer than ever,” said Ohana, a member of Prime Minister Benjamin Netanyahu’s Likud party. “Tonight, as Knesset speaker, I want to put up a stop sign.”

Ohana argued that since 1977, when Likud took power for the first time, the justice system has unilaterally been siphoning off powers from politicians to itself.

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“Now, we are facing a new and dangerous juncture, which could plunge us into the abyss, with the High Court soon holding discussions on Basic Laws,” he said.

“Israel is democratic, and in a democracy, the sovereign is the people. In a democratic state, the justice system respects the sovereign, the people and its elected officials, and this respect is mutual. There is no debate, and there cannot be one, over the question of whether the Knesset has authorized the court to nullify Basic Laws,” he said, arguing that the court possesses no such power.

Supreme Court President Esther Hayut, center, and other justices during a court hearing at the Supreme Court in Jerusalem, on August 3, 2023. (Yonatan Sindel/Flash90)

He appealed to politicians to find a compromise deal that will avert the constitutional showdown, but added that even if these efforts fail, “this doesn’t allow the court to make a decision instead of the elected officials.”

“This situation will lead to an unprecedented incident in a democratic country,” he said, before addressing the justices: “Recognize the limits of your power, not only those of other branches [of government]. Recognize that in a democracy, no branch is all powerful.”

Ohana’s remarks drew predictable responses of praise from coalition figures and scorn from the opposition, with Justice Minister Yariv Levin hailing it as a “brave speech.”

“I hope that his words will find an attentive audience among the Supreme Court justices and that the court will respect the authority of the government and Knesset, and the sovereignty of the people,” said Levin, a leading proponent of the judicial overhaul push.

Far-right Religious Zionism MK Simcha Rothman praised Ohana’s “important words,” as did Finance Minister Bezalel Smotrich, who claimed the Supreme Court has no authority “to deliberate or invalidate” Basic Laws.

“The holding of a hearing on petitions to Basic Laws is a challenge to the institution of the Knesset and Israeli democracy, and it again proves the importance of the corrections to the judicial system we are leading,” said Smotrich, who heads the Religious Zionism party.

Israeli minister of Finance Bezalel Smotrich and minister of Justice Yariv Levin attend a meeting on the planned state budget vote, in the Israeli parliament on May 23, 2023. (Yonatan Sindel/Flash90)

“Those who in the morning want to reach agreements that safeguard the rule of law cannot threaten in the evening to dismantle it,” the party said, referring to Netanyahu’s appeal to party leader Benny Gantz to meet for talks aimed at reaching a compromise on judicial reform.

The leaders of the ongoing protest movement against the government’s plans to weaken the judiciary denounced the speech as “a mafioso threat” against the courts before next week’s hearing.

“In a democratic country there are separations of powers in which parliament and the government obey court rulings and whoever does not obey is a criminal,” the Kaplan Force group said in a statement.

A group of 1,340 reservists for elite special operations units in the military also hit back at Ohana.

“The Knesset speaker expressly announced now that he won’t abide by the High Court ruling,” said a statement from the group of reservists, which has long been threatening to stop showing up for volunteer duty in protest of the overhaul.

“We know for a fact that a government that doesn’t obey the High Court will find itself the next day without an army, without a Shin Bet and without a Mossad.”

File: Israeli reserve soldiers, veterans and activists protest outside the Supreme Court in Jerusalem, against the government’s planned judicial overhaul, on February 10, 2023. (Yonatan Sindel/Flash90)

Ohana’s remarks came a day after the High Court rejected a government request to push back the September 12 hearing on the reasonableness law, which 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.

The petitioners against 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 that has been passed by the Knesset. Like other parts of the radical reform agenda, it has faced massive and intense opposition from protest groups and opposition parties.

The High Court will also soon hear petitions against Justice Minister Yariv Levin’s refusal to convene the Judicial Selections Committee, which he is trying to refigure as part of the judicial shakeup to give the coalition control over appointing judges.