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Unprecedented 15-judge panel to hear petitions against coalition’s reasonableness law

The High Court of Justice will for the first time ever convene a 15-judge panel to hear petitions against the highly controversial law passed last week to limit the court’s oversight of its own actions.

Supreme Court President Esther Hayut issued a statement on Monday according to which she had decided that every justice on the court would preside over the hugely significant and explosive hearing against the “reasonableness” law which, together with the rest of the coalition’s judicial overhaul agenda, has created an unprecedented protest movement against the government.

The eight petitions the court has accepted against the law will be heard on September 12.

The law, an amendment to Basic Law: The Judiciary, prohibits the court from reviewing government and ministerial decisions through the judicial reasonableness standard.

Opponents of the law say the reasonableness standard serves as a critical safeguard against arbitrary or capricious government actions, or decisions made for inappropriate reasons, especially with regard to the dismissal of key law enforcement officials.

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The coalition argues, however, that the Supreme Court has abused the standard, and that it gave the court too broad a scope to intervene in government policy.

Supreme Court President Esther Hayut during a hearing of petitions against the so-called ‘Tiberias law’ at the High Court in Jerusalem on July 30, 2023. (Yonatan Sindel/ Flash90)

Although this will be the first time 15 High Court justices hear a single case, it is not the first time that a full panel of the court has been convened — when there were fewer judges on the bench.

In 1970, a then-full panel of nine justices was convened to hear the Shalit case, which addressed the highly sensitive issue of who is a Jew according to state institutions.

The High Court has previously heard petitions on Basic Laws, or amendments to Basic Laws, most notably against Basic Law: Israel as the Nation-State of the Jewish People in 2020, which was criticized for what opponents said was the harm it did to equality in Israel, thereby undermining Israel’s democratic character.

In the decision on that case, heard by 11 justices, Hayut wrote in the majority opinion that striking down a Basic Law would be highly problematic due to the quasi-constitutional status of these laws, and that the High Court would only do so if such a law violated Israel’s Jewish or democratic character, as laid out in the Declaration of Independence.

The court ruled that that law could be interpreted as being in line with the values of equality and democracy, and therefore declined to strike it down, but the court ruling is seen as having developed the doctrine of the “unconstitutional constitutional amendment,” which could in the future be used to strike down a Basic Law.

The petitions against the reasonableness law also argue that it represents a misuse of constituent authority, meaning that the Knesset abused its authority to pass it.

A composite image, from left, of Justice Minister Yariv Levin at a government conference at the Prime Minister’s Office in Jerusalem on January 15, 2023; Supreme Court Chief Justice Esther Hayut at a hearing in Jerusalem on December 1, 2022; and Prime Minister Benjamin Netanyahu at the Prime Minister’s Office in Jerusalem on January 29, 2023. (Yonatan Sindel/Flash90)

In 2021, the High Court came very close to striking down an amendment to Basic Law: The Knesset, which had been passed in 2020 to extend the deadline for the approval of the state budget (to enable the troubled Netanyahu-Gantz coalition at the time to overcome its political differences).

The High Court ruled then that the amendment was a misuse of the Knesset’s authority in its capacity as constituent assembly when it passes a Basic Law, issued a “warning of cancellation” and stated that any such amendments to budget deadlines in the future that are passed for narrow, short term political purposes would be unconstitutional.

It did not, however, annul the amendment itself, since all the funds of the continuing budget that resulted from the 2020 extension had already been disbursed.