High Court invalidates law for repealing the reasonableness standard

The High Court of Justice on Monday struck down the basic law for repealing the reasonableness standard by a majority of eight justices who opposed the law against seven who supported it. Observers estimates are that the judges published the verdict this evening to prevent further leaks, and in response to a proposal raised in the Knesset, first published by Walla!, to delay publication of the verdict due to the war.

The High Court also approved its own power to strike down basic laws as a general matter by a vote of 12-3.

Last Wednesday, N12 published a leak of the High Court's draft verdict, which indicated that the judges were expected to invalidate the law by a narrow margin. This was an unprecedented step and the first-ever leak of a draft verdict from the High Court to a media outlet.

Why was the law invalidated?

Outgoing High Court President Esther Hayut was among the majority who struck the law. In the draft of the verdict, Hayut wrote that "the Basic Law constitutes a significant deviation from 'the evolving constitution' and therefore must be accepted with broad consensus and not by a narrow coalition majority."

Justice Ofer Grosskopf joined Hayut's opinion and stated, "The demand to apply the law to those at the top of the pyramid is at the heart of our rules, no person is exempt from the rule of law." Other justices who voted in favor of invalidating the law were Yitzhak Amit, Anat Baron, Khaled Kabub, Uzi Vogelman, Daphne Barak-Erez, and Ruth Ronen.

What do the supporters say?

Justice Yechiel Kasher fundamentally opposed the content of the law but argued that the court does not have the authority to invalidate it. "The task of legislating Basic Laws is within the purview of the Knesset and not of this court." Justice Noam Sohlberg also opposed the annulment of the law, and even stated that "most of the judges and presidents of this court stand with me in my opinion (not to invalidate Basic Laws)." The other justices who opposed the invalidation of the law were Yosef Elron, Alex Stein, Yael Willner, David Mintz, and Gila Canfy-Steinitz.

What is the reasonableness standard?

The reasonableness standard was developed by the High Court to review decisions of the executive level, namely the bureaucracy in government ministries and local authorities, and also to review decisions of elected officials and those they appoint. In other words, it's where the judicial branch weighs in on policy decisions made by the other branches which impact constitutional rights.

What does the coalition seek to do?

The coalition wants to limit the reasonableness standard and adapt it to a proposal written by High Court Justice Noam Sohlberg in 2020 in the "Shiloah" journal. According to Sohlberg, the reasonableness standard should be limited, not abolished, and applied only to decisions of the administrative level (bureaucracy) and not to decisions of the elected officials (politicians).

What about the rule of law in the governing authorities?

The limitation of the substantive reasonableness standard does not cancel other powers of judicial review available to the court. Among these grounds, it is worth mentioning the proportionality clause, by which the court critiques administrative decisions that infringe on the fundamental rights of the individual. This is important for our discussion, as it has great potential to fill the void left by the substantive reasonableness standard in terms of judicial review of decisions by elected officials.

What would Israel look like without the reasonableness standard?

Limiting the reasonableness standard may alleviate some of the tensions between the Knesset and the government and the High Court, as its limitation would lead to the court not discussing decisions made by the elected officials. However, on the other hand, the proposed law as it stands today is sweeping and eliminates the possibility of the High Court of Justice to discuss any decision made by the prime minister, a minister, or any other elected public official.