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By Vered Weiss, World Israel News
The ruling of Israel’s High Court to strike down the basic law repealing the reasonableness clause was announced on Monday night.
In addition, 12 out of 15 judges ruled in favor of the right of the High Court to conduct a review of Basic Laws and to intervene in exceptional cases in which the Knesset oversteps its authority.
Judges who supported the repeal of the reasonableness clause were: Esther Hayut, Yitzhak Amit, Anat Baron, Ofer Grosskopf, Uzi Fogelman, Dafna Barak Erez, Khaled Kabob, and Ruth Ronen.
Judges who supported the repeal of the reasonableness clause were: Yechiel Kasher, Noam Sohlberg, Yosef Elron, Alex Stein, Yael Willner, David Mintz, and Gila Kanfei Steinitz.
The majority opinion felt the repeal of the reasonableness clause would cause “unprecedented damage to two of the foundational characteristics of the State of Israel as a democratic state – the principle of separation of powers and the principle of the rule of law.”
Esther Hayut wrote, “The Knesset’s authority in its capacity as a constituent authority is not unlimited, and it is not authorized to enact a Basic Law that denies or directly contradicts the characteristics of Israel’s nuclear identity as a Jewish and democratic state.”
Hayut added, “This conclusion is drawn from the constitutional data as they have developed since the early days of the state.”
Judge Yael Willner said she voted for the repeal of the reasonableness clause because she thought the measure should have been given a sustainable interpretation instead of striking it down.
Justices Stein and Kanfi-Steinitz also agreed that the repeal should have been passed because they intended a narrow interpretation.
Judge Elron said the repeal should not have been canceled because there was no reason to assume it would have had the severe effects claimed by the majority since no interpretation of the amendment had yet been enacted.
Justices Solberg and Mintz disagreed with the majority’s position regarding the Court’s authority in principle to conduct judicial review of the Basic Laws and even the authority to decide on this position because they argue no source gives the court the authority for such a review.
Last Wednesday, it was leaked on N12 that the repeal was likely to be defeated by a narrow margin in the first-ever leak of a draft verdict from the High Court through the media.
It was reported that judges published the verdict to avoid further leaks and in response to a proposal in the Knesset to delay the decision until after the war.
Responding to criticism about the timing of the decision during the Israel-Hamas war, Judge Hayut responded, “About a month after the hearing on the petitions took place, we were moved by a brutal terrorist attack and since then the State of Israel has been engaged in a difficult and determined war against the terrorist organizations that seek to destroy us.”
She added, “Even at this difficult time, the court must fulfill its role and decide the issues brought before it, and even more so when it comes to issues relating to the foundational characteristics of Israel’s identity as a Jewish and democratic state.”
However, Justice Minister Yariv Levin was highly critical of the timing of the decision.
Levin said, “The Supreme Court justices’ decision to issue the ruling during a war is the opposite of the spirit of unity required these days for the success of our fighters on the front.”
Further, Levin said that he felt the High Court was overstepping its bounds and added, “A situation in which it is impossible to enact even a Basic Law or make any decision in the Knesset and the government without the consent of the High Court takes away from millions of citizens their voice and the basic right to participate equally in decision-making.”
