What is the Rabbi’s opinion on the High Court’s ruling to annul the law to reduce the grounds of reasonableness?
My opinion is that this is a very, very problematic judgment.
I tend to agree that in extreme cases the court has the authority to overturn basic laws for various reasons. But I really don’t see why this case is extreme enough. It is possible to overturn problematic decisions on other grounds, and I haven’t seen an example of a clearly problematic decision that only reasonableness can do.
Beyond the problematic nature of the ruling itself, the fact that it was given by a majority of 8 to 7 is doubly problematic. If there is clearly a problem here, it cannot come from a majority of 8 to 7. We see the dependence on the composition of the court; if one had been different, the result would have been different. This is a really excellent reason to change the appointment of judges.
And at this time, not necessarily the war, but the public rift over the past year around the separation of powers, it’s a really stupid decision in my opinion.
I think this ruling has revived the legal reform of the late Rabbinate. Now we will hear again about the override clause, about appointing judges, and this time it seems that it will be with obvious justification.
In the ruling, they cite several examples of problematic decisions that can be made without a reasonable ground.
A. Corrupt appointments in the public service (for which it is difficult to prove extraneous considerations).
B. Dismissal of gatekeepers
C. Corrupt economy of a transitional government: Some of them argued that if there had been a reasonable ground for a transitional government, it would be different. Their concern is that a transitional government would make clearly unreasonable and populist decisions, such as distributing corrupt funds to sectors of the political base. According to them, this is extremely problematic because a transitional government does not enjoy the trust of the Knesset and this could significantly distort the election results.
And by the way, what the rabbi wrote that 8:7 was invalidated is true, but it is not accurate. There are several of the judges who did not invalidate (if I understood correctly, four) and the reason they did not invalidate is that they made a valid interpretation of the law according to which it simply nullifies the reasonableness of Barak and returns to the reasonableness of the original British model. The majority judges simply thought that there was no such interpretative possibility from the wording of the law.
Although I only read the summary of the case, these examples are really unconvincing, as the minority judges wrote. All of these can be overturned on other grounds without any problem. It must be understood that when there is a clearly unreasonable appointment, or unreasonable steps by a transitional government, it can be assumed that there are extraneous considerations here even without proving them. I was not convinced. Absolutely not.
So what? It's still 7 vs. 8 here.
If they can overturn a Basic Law on such a shaky basis, I have no doubt that they will overturn any decision they deem unreasonable, including the three types you mentioned, despite the law on the cancellation of grounds of reasonableness. In the worst case, all 15 will adopt the restrictive interpretation of the cancellation of grounds of reasonableness, and that's it. Everyone understands that this is what will happen in practice. Therefore, this reasoning is naivety that reeks of strong political odor.
Incidentally, one or more of the minority justices wrote that they could consider repealing the law of revocation of the reason for reasonableness when a concrete case comes before them that requires revocation and they cannot do so. Incidentally, this is how the High Court usually operates. Since it is completely clear to everyone that there will not be such a case (for the reasons I listed above), they preferred not to wait and repeal now.
I partially agree with the criticism, in the sense that I trust legal imperialism to find another remedy in the event that there is a corrupt transitional government or the legal advisor is fired.
But I must say that I have the impression that this ruling also stemmed from the entire reform and the Salami system that is underway (this is the impression I get from several sentences written by some of the judges who disqualified).
This consideration is certainly not a “legal” consideration in the conventional sense, but I can understand a concern about Salami.
Regarding the affirmative interpretation, they should have ruled on it at the time of the petition itself and argued that it cannot be dressed up in the language of the law (I admit that I agree with the majority's position. The law is very unambiguous in its wording). Furthermore, Rothman himself, in the hearing at the High Court, answered exactly this way when asked about it. Not to deal with the plausibility of the point. Not in the Barak version, not in the original British way, not in a transitional government, not in the delegation of powers of the minister, etc.). Rothman was asked about this explicitly in the hearing in the Supreme Court. The government's lawyer said similar things when he was asked his opinion on the supporting interpretation (if I remember correctly).
The fear of this Salami is very problematic. It is not their job. When the problematic point comes, they will intervene then and not in advance. What's more, everyone knows that this was the first and last remnant of the dead reform. This is especially true in light of what Solberg wrote, that there is an institutional conflict of interest here (the High Court takes care of its own powers). There is no escape from it, of course, but one must be a thousand times more careful in such a situation and not act rashly. But now, because of their stupidity, the reform may be resurrected, and this time it will be rightly so. Absurdly, the fear of the dead Salami is that it will bring upon us the continuation of the Salami, which without it would not have been expected to happen.
As for the restrictive interpretation, I have already written. First, what Rothman says is irrelevant. What determines is the language of the law. Second, even if the language of the law is unambiguous, the court could have interpreted it narrowly when necessary, as seven justices have already done. And I haven't even mentioned the other grounds that could nullify everything.
In short, nothing here holds water. This is an outrageous move by the court, and it is clear that it is completely political. It further advances the end of public trust in it, and encourages significant reform that alone could perhaps restore its status.
I agree that it is a shame about the ruling (but I do think that the original reform is completely dead and I do not see it being revived). And all this precisely in light of the fact that I really think that we have a relatively restrained court with integrity.
What I assess the High Court of Justice did is a rather aggressive attempt to force the Knesset to enact a legislative Basic Law.
And as Chiot took care to emphasize in her ruling:
It is also important to emphasize that my conclusions regarding the question of judicial review of the Knesset's constituent authority are based on the existing constitutional situation. As has already been clarified in this Court's ruling: “The legitimacy of judicial review is related, at least in part, to the process that led to the constitutional amendment. In other words, the more complex, inclusive and comprehensive the work of the constituent authority is, the more its products will enjoy greater democratic legitimacy and, conversely, the less willingness there is for judicial review” (Ibid., paragraph 2 of Justice Baron's opinion; see and compare: Roznai, at pp. 220-219). Therefore, to the extent that a rigid and unique framework for the enactment of Basic Laws and their amendment is established in the future, which ensures that their enactment will be based on broad public consensus, there will be room to reexamine the issue of judicial review regarding Basic Laws that will be adopted according to this framework. But as long as this is not the constitutional reality, I believe that the authority of this Court to intervene in those exceptional cases in which the Knesset has exceeded its authority as a constituent authority should be recognized.
The repeal of the law was necessary because of the war.
For those who don't know, the war is unpopular in the world and complaints about war crimes against Israel have begun to be filed.
There is a principle that prevents an outsider from investigating or judging if an independent court has already investigated/judged.
The crushing of the Supreme Court by Levin and Rothman leads to a situation where even if the court were to investigate and judge war crimes in Gaza, it would not be accepted in the world as an independent court, and therefore every Israeli soldier could find himself in The Hague, and of course the State of Israel would be subject to sanctions like Russia.
The court came to its senses and regained its power and independence to be able to protect the country and its soldiers.
It is interesting that the division between those who care about our soldiers and those who do not runs exactly between conservatives and liberals, and between supporters of the protest and its opponents. The principle of complementarity is in brilliant correlation (correlation 1.00) with the legal-political perception. Isn't it a thing!
Not true in this case. The conservatives care about the lives of the soldiers over the “human” rights of the Palestinians. The ”liberals” who, as mentioned, are progressives, only care that soldiers (meaning themselves) can travel abroad and continue to live at the same standard of living they are accustomed to and they don't care that other soldiers die – meaningless deaths – for this.
The meaning of an organism (mutual guarantee) is not only that the individual sacrifices himself for the sake of the whole but also that the whole goes to war for the sake of the individual, just as a person goes to war as a whole even against those who would only threaten to cut off his little finger. So it is the conservatives who really care about the lives of the soldiers. The conservatives would bomb Gaza and kill half a million Gazans without having to eliminate Hamas (which, as mentioned, is not the real enemy but the Gazans themselves) and without endangering even a single soldier - for conservatives, when soldiers die, they die a meaningful death - a death for the people of Israel and not for the "state" (which is simply a collection of progressive officials who earn high salaries and have no loyalty to the Jewish people).
Besides, the world will whine about this principle as usual and we will be on trial in The Hague no matter what the High Court does. Will the High Court now put the entire IDF on trial for war crimes? What a joke
Besides the fact that this ruling has no legal and/or moral validity and no one has to obey it, nothing happened here except exposing the puffed-up arrogance of the empty clowns of the High Court
By the way, if you think about it, in addition to the fact that the ruling has no legal validity, these 12 judges are actually criminals and should be prosecuted for sedition. Well, that will come after the reform. The High Court did us a great favor without knowing it because this will actually be the issue of the next elections. What's the point of investigating the omission if there is no democracy here at all.
https://news.walla.co.il/item/3632869
The judges are not criminals or rebels. But the High Court did piss off the springboard, and proved to those who sat on the fence that giving up on legal reform is giving up on a significant part of democracy. Fortunately for us, whoever sits on the Supreme Court today does not have the patience and strategic vision of Aharon Barak, who turned constitutional law on its head with the Salami method. Hubris overcame them, and they did the job of informing better than twenty articles by Danny Friedman or Gidi Sapir.
Now we need to bite our lips, fight Hamas (the real enemy, I remind you), and after the war and the reconstruction from it are over, return to reform and do it wisely this time.
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