Netanyahu’s Reasonableness Amendment: Will Israel Supreme Court prevent a Constitutional crisis?
By Eyal Lurie-Pardes.
After a year of unprecedented events, Israel’s political and constitutional turmoil came to a head on Sept. 12, when the Supreme Court heard oral arguments in a critical case that will determine the future of the Netanyahu government’s judicial overhaul. The arguments concern the so-called Reasonableness Amendment, passed by Israel’s parliament, the Knesset, in late July; this amendment to the country’s Basic Laws — Israel’s equivalent to constitutional articles — would partially strip the Supreme Court of its authority to review governmental acts. For the first time in its history, the full Supreme Court, all 15 justices, sat together to decide whether to overturn a Basic Law.
The 13 hours of oral arguments were broadcast live on Israeli television, dominating the entire news cycle. What may at first glance seem like a technical debate over the intricacies of Israeli administrative law was, in reality, a defining moment for the country’s judiciary and a test of its will to push back against plans by the Netanyahu government to overhaul the judicial branch.
The legal background
In the absence of a written constitution, the Knesset created Basic Laws, which were intended to become articles of a future written constitution. Until the early 1990s, these Basic Laws mainly dealt with the checks and balances between the branches of government; but in 1992, the Knesset passed two Basic Laws to protect civil rights — Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation. Three years later, in 1995, the Supreme Court conferred a constitutional status on the Basic Laws, allowing for the nullification of any statutes that violate their provisions. This ruling thus enhanced the fundamental rights protections Israelis now legally enjoyed, primarily spelled out in the Basic Law: Human Dignity and Liberty.
In doing so, however, it also established a fragile constitutional framework. Since there is no difference in the procedural requirements for passing a regular statute versus a Basic Law, the Knesset could easily change the constitutional framework through a simple majority vote. In short, there is an underlying contradiction between the constitutional status bestowed on Basic Laws and the ease with which they can be passed or amended. This is also unique from a comparative law perspective, given the more robust procedural safeguards typically afforded to constitutional provisions worldwide, such as requiring a parliamentary supermajority or public referendum.
The Reasonableness Amendment is part of the government’s grand plan for judicial overhaul, which must nevertheless be understood within the context of the present political realities. The current Israeli government is the most right-wing in history, led by an alliance between Prime Minister Benjamin Netanyahu and his Likud party, Jewish supremacists, and ultra-Orthodox parties. Under Israel’s parliamentary system, the parties that make up the governing coalition also hold a majority of seats in the Knesset, thus leaving the Supreme Court as the primary institutional check on both the executive and legislative branches. Conservatives, including Minister of Justice Yariv Levin, have for years advocated reforms of the judiciary that would allow the government to more efficiently advance parts of the conservative agenda the Supreme Court previously blocked. For example, the changes spelled out in the Reasonableness Amendment could allow them to deepen the apartheid in the Occupied Palestinian Territories, increase state sponsorship for Jewish ultra-Orthodox institutions, and scale back women’s and LGBTQ+ rights. Moreover, many commentators believe Netanyahu’s willingness to push for the judicial overhaul is related to his ongoing trial in three major corruption cases, as greater government influence over the judiciary could potentially influence the outcome.
When describing the judicial overhaul plan in January 2023, Justice Minister Levin noted four significant measures designed to shift the balance of power between branches of government: changing the Judicial Selection Committee’s composition to increase the government’s influence on the judicial branch’s political leaning; transforming administrative legal advisors into political appointees; promoting an override clause that will allow the Knesset to overturn Supreme Court decisions; and passing the Reasonableness Amendment, which strips the courts of the power to exercise judicial review over the executive branch and the administrative state based on the Reasonableness Clause.
The Reasonableness Clause became a central mechanism for the judicial review of administrative acts by government officials. The Supreme Court gradually developed the Reasonableness Clause to serve as a “catch-all” when traditional clauses — such as conflict of interest, ex parte communication, or arbitrariness — were difficult to prove or insufficient to protect the public interest. According to the approach adopted in the 1980s, the Reasonableness Clause requires government officials to consider all relevant factors and adequately balance between them. If the decision reflects a significant imbalance, the Supreme Court can strike down the governmental decision for “extreme unreasonableness.” The clause was especially critical in the judicial review of nominations, governmental acts during the transition of power, and civil rights protections.
The legal arguments
Before the court addresses the constitutionality of the Reasonableness Amendment, it must first answer whether it has the authority to strike down a Basic Law. The philosophical difficulty in doing so is in identifying the legal source that grants the court authority to review Basic Laws. That is, if the court has asserted since 1995 that its authority to practice judicial review over statutes is based on the Basic Laws, then how does it also have the authority to review the Basic Laws themselves?
The court previously addressed two relevant doctrines that could establish such authority to review Basic Laws. One doctrine — adopted in countries like India, Slovakia, Taiwan, and Kenya — is the Unconstitutional Constitutional Amendment. This doctrine enables judicial review of constitutional amendments if they violate the “substantive core” or the “fundamental nature” of the Constitution. In 2021, when the Supreme Court denied petitions against the Basic Law on Israel – Nation State of the Jewish People, it stated that because there is no formally adopted written constitution in Israel, it might only adopt a narrow version of the Unconstitutional Constitutional Amendment doctrine. Based on this narrow version, the court would be allowed to strike down a Basic Law if it severely violates the core values of Israel as a Jewish and democratic state. However, the court did not explicitly rule that this narrow version is a binding precedent.
Another doctrine previously discussed by the Supreme Court is Abuse of Constituent Authority. This doctrine asserts that the Knesset’s authority to legislate Basic Laws is restricted to prevent the intrusion of unconstitutional matters into the Basic Laws. Such intrusion is exceedingly feasible because the Knesset can pass Basic Laws with a simple majority. The court has ruled several times that it possesses the authority to exercise judicial review over Basic Laws under this doctrine but has yet to strike one down based on it.
In the oral arguments in mid-September, the petitioners asked the Supreme Court to strike down the Reasonableness Amendment based on these two doctrines. First, they claimed that the amendment is unconstitutional because it creates an administrative black hole immune from judicial review. According to the petitioners, this administrative black hole could weaken the court’s ability to protect against corruption, civil rights violations, and attacks on institutional gatekeepers. In addition, the petitioners asked the justices to consider in their analysis that the amendment is a part of the government’s grand plan to overhaul the judiciary, suggesting that upholding the amendment would make it harder to block future anti-democratic measures. Therefore, the petitioners claimed it violates the core principles of Israel as a Jewish and democratic state.
Second, the petitioners argued that the Knesset abused its constituent authority because regulation of administrative law clauses should not be a part of the constitution. They demonstrate that issues of the basis for judicial review over administrative actions are addressed worldwide in statutes — such as the Administrative Procedural Act in the U.S. — rather than the constitution. Therefore, the Supreme Court should strike down the Reasonableness Amendment to prevent intrusion of statutory matters into the constitutional text.
The petitioners received surprising support from Attorney General Gali Baharav-Miara. Usually, the attorney general is entrusted to represent the government before the Supreme Court. However, as part of the independence of the attorney general as a non-political professional role, she has the authority to refuse to defend the government’s position if it cannot legally justify its actions. The attorney general used that authority and filed a brief supporting the petitioners, asserting that the amendment should be struck down.
The government argued in its brief that the court has no authority to exercise judicial review over Basic Laws. Furthermore, it asserted that if the court grants itself authority to practice such judicial review, this would severely encroach on the functions of the Knesset as the constitutional legislative body. These arguments represent the view of a minority of the legal scholars in Israel, however. Most scholars, even conservative ones, would admit that because of the low procedural threshold to amend the Basic Laws, there is justification to have some review by the court to prevent extreme scenarios, such as extending the Knesset term indefinitely.
What comes next?
The justices now face a political and legal dilemma. There is growing pressure among the protest movement, the opposition, and prominent figures in the legal scholarship in Israel — including the attorney general — to nullify the Reasonableness Amendment. However, the government views the amendment as its first success in passing a pivotal component of the “judicial reform.” The Knesset speaker, Amir Ohana, has insisted that the Supreme Court has no authority to overrule Basic Laws. Prime Minister Netanyahu shares this sentiment and has refused to publicly commit to abide by the Supreme Court’s ruling. In light of these clashes, overturning the amendment could create a full-blown constitutional crisis. In such a crisis, the different governmental entities — most notably the national security bodies like the military, the Mossad, and the Shin Bet — would need to decide whether to listen to the government’s orders or the Supreme Court’s rulings. Significant figures in some national security circles have already implied that in such a case, they will obey the law as interpreted by the court.
To understand the possible outcomes of the ruling, we need to distinguish between the two main legal questions: Is the Supreme Court authorized to strike down Basic Laws? And if so, should the Reasonableness Amendment be struck down?
As for the first question, based on their comments during the hearing, most justices would maintain that the Supreme Court has the authority to perform judicial review over Basic Laws based on the narrow test of the Unconstitutional Constitutional Amendment. Such a clarification could also serve as a warning sign to the government and the Knesset that the court might overturn future legislation in the government’s plan to overhaul the judiciary.
However, the court is less unified as to the second question of whether to strike down the Reasonableness Amendment. The justices seemed reluctant to rule that it amounts to a severe violation of Israel’s core principles. Several justices seemed troubled that the petitioners could only point to speculative problems that could arise from the amendment, such as removing the attorney general, which might not provide sufficient grounds to strike down a Basic Law for the first time in history.
Instead of striking down the Reasonableness Amendment, the court could use interpretation tools to limit the amendment’s scope, thus minimizing its problematic aspects. For example, the court could avoid possible administrative chaos by stipulating that all prior precedents based on the Reasonableness Clause are still legally binding. This would leave the court to decide on a case-by-case basis whether the precedents established by the Reasonableness Clause could be justified under different administrative law clauses.
The court must publish the final ruling by the end of January 2024. Chief Justice Esther Hayut, who presided over this case, is retiring at the end of October, and the law allows her another three months post-retirement to publish opinions. Although Chief Justice Hayut is determined to prevent a constitutional crisis and enshrine her legacy as a protector of Israeli democracy in her ruling, in this case there might be a limit to what the court can do. Ultimately, whether the situation deteriorates into a constitutional crisis will depend on if the government obeys the Supreme Court ruling or continues to obdurately push ahead with its version of the judicial overhaul.
(Eyal Lurie-Pardes is a Visiting Fellow in the Program on Palestine and Palestinian-Israeli Affairs at the Middle East Institute after receiving the competitive University of Pennsylvania Carey Law School LLM Post-Graduate Fellowship.)
[This article was originally published by the Middle East Institute at mei.edu on October 6, 2023. Emphasis added by us]
