High Court should allow reasonableness law only after elections - opinion

Sitting as a full panel of 15 judges in September, the High Court will hear arguments for and against the new law, enacted by the Knesset on July 24, which forbids judges to rule that a governmental or ministerial decision is unreasonable – and therefore invalid.

Under the current conditions of tribal confrontation in Israel, we do not know what will happen if the court nullifies the law, and we also do not know what will happen if the court endorses the law.

A constitutional standoff between the coalition and the opposition may ensue. That is not because we have a constitution guaranteeing separation of powers and the controversial law violates it, but because we have a tradition that regards the Judiciary as an institution rightly authorized to occasionally check the Executive and Legislative Branches of government.

This tradition does not rest on a few decisions promoted by former Supreme Court judges like Aharon Barak, but on the common sense principle that no one – not an accused air polluter, nor an accused tax dodger, nor an accused violent husband – should be the judge in his or her own case, and that holds true even for elected officials.

Consequently, we are threatened by a dangerous standoff between heartfelt convictions. Many voters and some Members of Knesset believe that the government was properly elected in 2022 and is therefore entitled to enact any ordinances, including the reasonableness standard law, by virtue of popular sovereignty. 

At the same time, many other voters and some Knesset members believe that, even though the government was chosen in democratic elections, the reasonableness law violates the tradition of external review, and therefore deserves to be struck down. 

Usually, Israeli judges – civil or rabbinical – serve society by claiming that they act legally. That is, they say that they do not create laws but make decisions based on their interpretation of already existing laws, some secular and some divine. But in this case, there is no legal precedent that offers a conclusive answer to the issue at hand, therefore the High Court must act politically.

That is, in the best sense of democratic politics, the court must consider, calmly and deliberately, how to avoid potential civil war and decide what course of action is likely to permit the State of Israel, peacefully, to continue to preserve and protect as many of its citizens as possible.

High Court should rule that the reasonableness law can come into effect in the next Knesset

What, then, should the court do? Above all, it should be careful. For that reason, it should finesse this moment of enormous historical danger by not addressing the issue squarely. It should, instead, rule 15-0 that the law on reasonable judgments will go into effect only in the next Knesset.

SUCH A RULING would achieve three ends, all entirely welcome. First, unanimity among the judges – some of them liberal and some of them conservative – would reverberate thunderously in these troubled times. Therefore, an undivided verdict by the court would have the virtue of neutralizing considerable partisan quibbling after the court makes its ruling.

Second, postponement would avoid directly challenging a potentially violent government, whose prime minister has not yet promised to obey whatever decision the court will hand down. A postponement would therefore deprive that government of an opportunity to ignore an adverse ruling by the court and thereby precipitate a constitutional crisis. To that end, momentarily, the law would not be enforced.

Third, postponement would permit the country’s voters to formally express their opinions of a Knesset judgment (the enacting of the law) which, at the moment, a majority of voters seem unlikely to endorse. And if that majority would materialize on election day, it would choose representatives, in an incontestably legitimate way, who, upon forming a new government, could promptly cancel the 2023 law before it might do any damage to democracy in Israel.

The writer is a professor of American Studies and Political Science at The Hebrew University, Jerusalem. msricci@mail.huji.ac.il