Why did court make reasonableness standard decision in wartime? - comment

The current war in Gaza does not yet have a name, a defining song, or a victory picture. But it does have a slogan: “Together we will win” (b’yachad ninatzeach).

You see it everywhere: on stickers, on magnets, on the television screen during the nightly news broadcast. Together we will win. It sounds like a cliché – kind of like “United we Stand, divided we fall” – but even clichés can articulate a truth. And this does articulate a truth.

Amid the horrors of October 7, one thing that refreshingly emerged clearly and as a tremendous asset was the country’s solidarity and unity of purpose. Suddenly, the issues that divided the country up until October 7 – first and foremost, the judicial reform – melted away.

Well, melted away might not be the correct term because the issues did not disappear; they were relegated to the far background or, rather, put in storage temporarily while more pressing matters – such as survival – moved to the foreground.

And this was wise.

At a time when the country is engaged in a war, where every day soldiers are dying, where hundreds of thousands of soldiers are fighting side by side – Rightists and Leftists, secular and religious – the last thing the country needs is to bring to the surface those issues that just three months ago pitted brother against brother.

Those issues are not going away. Differences of opinion regarding the nature of the state will not disappear. There will be differences, even passionate ones, and there will be disagreements over the proper calibration of the balance of powers, though the hope is that the war in Gaza will give some perspective that will enable people to manage those disputes and disagree without demonizing or delegitimizing total sectors of the society.

There is no need to pretend – even during wartime – that those disagreements, deep disagreements, do not exist. But there is also no need during a war which will go a long way toward determining this country’s future to highlight those differences or bring them to the fore.

This is precisely what the High Court of Justice did on Monday night, issuing its ruling shooting down the Knesset’s amendment to a Basic Law curtailing the court’s use of the reasonableness standard in its judgments. The court brought back to the forefront a divisive issue that is the last thing that the nation needs right now.

The timing of the High Court decision

Why did the court issue its ruling now? Because of a January 12 deadline – a deadline set because of a law that says that retiring judges have three months to finish writing opinions in pending cases. In mid-October, two justices, Anat Baron and former Supreme Court president Esther Hayut, reached the mandatory 70 retirement age and stepped down from the bench, meaning that their decisions on this case – as well as another decision regarding who can say when the prime minister must recuse himself – needed to be handed down by mid-January.

The Knesset should have had the foresight already a month or two ago to alter the law – and the justices themselves should have had the wisdom to suggest it – giving retiring judges six or nine months to finish writing their opinions, thereby pushing off until after the war when this issue would come to a head.

Monday’s ruling reignites old divisions and threatens to send the country back into warring camps precisely at a time when the country needs to wage war together in Gaza, the West Bank, Lebanon, Syria, Iraq, and even Iran.Simple common sense would dictate that now is just not the time for this.

In a letter Sunday signed by leading jurists, including former deputy attorney-general Raz Nizri, president of the Jewish People Policy Institute and former Bar-Ilan law school dean Yedidya Stern, and former justice minister Daniel Friedmann, said, “The publication of the decision at a time when the war is being waged at a high intensity – when supporters and opponents of the [judical] reform are fighting and risking their lives together – is undesirable. There is a danger that it will harm the strong alliance uniting the reservists and the home front together since the outbreak of the fighting.”

The jurists suggested that the obvious way out of the dilemma would be a “quick amendment” to the law extending the three-month deadline for retiring judges to write their opinions to six or nine months.This made a lot of common sense. But it was advice not heeded.

Instead, by a razor-slim 8 to 7 margin, the court set a precedent and overturned an amendment to a quasi-constitutional Basic Law, which could plunge the country – during wartime – into a constitutional crisis.

In July, the Knesset legislated its amendment to a Basic Law saying the courts can’t use the reasonableness stature in their administrative decisions. On Monday, the court essentially told the Knesset, “You can’t tell us what we can do,” and – if the script plays itself out – the Knesset’s next move could now be to legislate a law saying, “Yes we can.” In other words, if the government decides to push the issue amid a raging war, the country may not know who has the final word: the government/Knesset or the court.

Moving forward 

The wise thing for the government to do now is just to forget about it and let it go. The government passed the controversial amendment, and the High Court of Justice shot it down. In the meantime, Hamas attacked, killed 1,200 people, took another 240 hostages, and plunged the country into an existential war.

For the good of the country, move on. Just move on. Let it be, drop the issue now, and continue focusing all energies right now on fighting Hamas, Hezbollah, the Houthis, Iranian-backed Iraqi militias, and even Iranians themselves – don’t restart a domestic fight over this. Not now.

In any event, the political constellation is expected to change dramatically after the war, and the governing coalition that pushed through this reform will likely not be the one ruling the country that much longer. In which case, a new government – perhaps the result of new elections – may retract the reasonableness law and put forth a more moderate plan to reform the judicial system, rendering this whole issue moot.

The court did not show good common sense in forcing this issue now. The government, at least, should show wisdom and just leave the issue alone, focus on the war, and not stoke the flames of division at a time when – as the slogan says – together we will win.