Israel's judicial reform law may harm Jews' right of return, NGO claims

The judicial reform's reasonableness standard law may harm the Jewish right of return to Israel and the fight against antisemitism, the International Association of Jewish Lawyers and Jurists (IJL) argued on Monday in its amicus brief application to the High Court of Justice ahead of the September 12 hearing.

The IJL, a non-governmental organization that works on behalf of the legal interests of Israel and Jewish communities worldwide, said that it was making an exception to its practice of not addressing domestic Israeli issues due to the impact that the July 24 basic law amendment may have on global Jewry. The motion was filed by former Canadian justice minister Prof. Irwin Cotler and NGO president Meir Linzen, and the group is being represented by major Israel law firm Herzog Fox & Neeman.

The right of return is a constitutional right that has also been enshrined in Basic Law: The Nation-State of the Jewish people, but doesn't fall under the rights protected by Basic Law: Human Dignity and Liberty or Basic Law: Freedom of Occupation, which means that it is not protected by judicial review. The IJL said that up until now, administrative law cases involving the right of return have been reviewed under the reasonableness standard. With the reasonableness law restricting judicial review of "unreasonable" government and ministerial administrative decisions, they were concerned that future decisions could be made to deprive some Jews of the right to immigrate to Israel.

The ability for all Jewish people to make aliyah is a cornerstone of the Jewish character of the Israeli state, and harming this right thereby undermines this fundamental principle, said IJL.

Other human rights are also left vulnerable to the executive branch's excesses without reasonableness standard, the NGO said. The common law doctrine was "a significant element of Israeli administrative law and an important tool in the toolbox of the Israeli courts in exercising judicial review that guaranteed the effective defense of human rights and protection of the right to a fair hearing." With more limited protection of human rights, Israel's compliance with international treaties is brought into question.

Israeli citizens also need these rights protected to ensure that they are receiving a fair hearing by an independent body that has the ability to effectively address the concerns of applicants.

The reasonableness law could also cause an increase in antisemitism by providing tinder to anti-Israel groups that criticize Israel, said IJL. At the same time, the government's policies were causing Israeli and Jewish students to distance themselves from the state.

IJL said that it has served as an amicus curiae in multiple international legal forums, and its role, expertise, and experience put it well placed to provide needed context and information on these issues.

Clash of the NGOs

Right and left-wing organizations have begun to file amicus briefs ahead of the September 12 hearing on reasonableness. The Israeli Law Professors' Forum for Democracy and Im Tirzu filed applications on Sunday. The forum argued that it had valuable research on the improper preparation of the reasonableness law in the Knesset. Im Tirzu contended that the court lacked the authority to review and strike down judicial reform amendments and that a voice on the right was needed to explore this point. The court has never before struck down a basic law amendment. The respondents are expected to file their own responses to the petitions by September 3.