The Dramatic Discussion

The debate continues: "The government can harm democracy"

Historically, all 15 judges of the High Court gathered for a dramatic discussion on the question of whether to invalidate the "Basic Law: The Judiciary" amendment, regarding the reduction of the Clause of Reasonability. Watch the live broadcast

(Photo: Yonatan Sindel/Flash 90)

After seven hours, the stage of the petitioners' stand begins in the Supreme Court (Bagatz) hearing on the repeal of the law limiting the Clause of Reasonability. The importance of the hearing gains significance due to the fact that it concerns an amendment to the "Basic Law: The Judiciary," and if the judges of the Supreme Court decide to intervene in the Knesset's legislation, the decision will be a dramatic legal precedent.

During the statement of attorney Eliad Shraga, the conservative judges strongly challenged the argument that there is an infringement on the democratic component of the state. Shraga also made a comparison in his opening remarks to the rise of the Nazi regime. Judge Yehiel Kasher said to attorney Eliad Shraga, "What is the connection between the reasonability amendment and the infringement on the independence of the judiciary - the independence of the judiciary is that it decides based on the extent of its discretion, not on the extent of its authority."

Attorney Shraga: "The idea behind this political coup is to transform the governing authorities of the State of Israel into a totalitarian structure, so that the legislative authority and the judicial authority will be subject to the executive authority. This structure is suitable for a theocracy."

Earlier in the discussion, Attorney Ilan Bombach referred to the Declaration of Independence: "The Declaration of Independence is a constitutive text. The government highly values it, but would you consider that the Declaration of Independence could undermine the authority?" Judge Baron responded sharply, "Show respect for this document." Later, Judge Amit told Bombach that he is not afraid of terrifying events. "Democracy doesn't die from a few strong blows – it dies step by step." In response, Knesset member Tali Gottlieb intervened: "The Knesset sanctifies democracy." President Hayut also chimed in: "Mrs. Gottlieb is a lawyer, and she knows that you don't burst into the courtrooms discussion." Gottlieb replied, "Even when I was in court, I burst into the discussion."

Later, Bombach argued that the Supreme Court judges are "talking about an extreme scenario." According to him, "the government and the Knesset expect the Supreme Court to trust them. They shouldn't use what could be considered a nuclear weapon – the petition against a Basic Law is a doomsday weapon." In response to these remarks, Judge Amit argued that the Supreme Court is one of the most restrained courts in the world, issuing 1.6 decisions per year (based on the reasonability clause – ed.). He asked, "So, explain to me why? Why do we need this amendment?" They returned to the debate of "if there is no law, there is no justice?" Judge Amit pointed out, "The law is the Clause of Reasonability."

(Photo: Miriam Alster/Flash 90)

Supreme Court President Esther Hayut decided to join the debate, saying, "There are dozens of different scenarios" regarding the Clause of Reasonability. According to her, "Some might argue that since the establishment of the state, or at least for the past 40 years, you are blocking all the courts from granting relief to plaintiffs and are saying that a court cannot adjudicate." She continued, "There are thousands of individual decisions that ministers make and delegate authority that affect citizens in their daily lives, and they come and complain about decisions that are not reasonable. They have no evidence to prove that there are extraneous considerations or other reasons, and they say the outcome is not reasonable." She added, "In most cases, we do not intervene, but the law blocks this possibility from all the courts in the country."

Continuing with President Hayut's remarks, Justice Amit stated, "Blocking of the court," quite literally. Hayut added to his comments and noted that "you can restrict its boundaries (referring to the court - ed.), but not without boundaries." According to her, "You are preventing the courts from adjudicating thousands of decisions that concern citizens." She then referred to the speed of passing the law, saying, "These discussions about the Clause of Reasonability began in the Knesset on June 25th. You may count how many discussions there were." Finally, Vice President Fogelman intervened, adding, "We are not the Knesset, but you may examine the timelines of other basic laws."

In the continuation of the discussion, Justice Naam Solberg clarified that amending the Clause of Reasonability through the Knesset is not the correct way: "Anyone who wanted, wholeheartedly or not, to connect between the hearing and legislation now, then I conclude that I did not take any position. If they want to hold on to the unconstitutional constitutional amendment - the doctrine needs to take a broader look and not oversee every basic law in a separate constitution. We haven't reached a point where the use of this doctrine is impossible at the current stage."

President Hayut responded to the judge's comments and stated that "the Clause of Reasonability is one of the central tools that the court has, which has developed in case law. Even Justice Solberg's colleagues believe that narrowing it is not reasonable, and the platform to do so is not a basic law. The natural place to limit it is where the court has developed it."

Attorney Helman, representing the Attorney General's office, commented on the resumption of the debate: "It would have been better if this basic law had not been legislated. To pass such a law, you need to define what a basic law includes, how it is legislated, and how it is changed. The Knesset was not authorized by the Constituent Assembly to create a Basic Law that does not conform to a Jewish and democratic state. The safeguards for our democratic regime are extremely weak."

He also said, "We always compare to the United States – in the past hundred years, they have enacted 8 amendments to their Constitution, and in the last 50 years, only one. The 25th Knesset managed to amend three basic laws in eight and a half months."

A representative of Gali Baharav-Miara mentioned, "This government can legislate and turn Israel into a non-democratic state. The court must prevent this."

In addition, Justice Solberg asked what could be done if the judges were wrong, whether the Declaration of Independence would allow the repeal of basic laws. Attorney Helman replied, "In our view, damage to the democratic core has already been caused." Justice Solberg asked, "So are we not living in a democracy? Today." President Hayut said, "It should be a fatal injury. We won't repeal every other basic law." Helman added, "The amendment creates a normative black hole in the system."

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