Dec. 28, 2023, 8:59 a.m. ET
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Pool photo by Debbie Hill
In July, Israel’s government passed a law stripping the Supreme Court of the right to use the subjective concept of “reasonableness” to countermand decisions by lawmakers and ministers. It was the first step in a plan by Prime Minister Benjamin Netanyahu’s government — at the time the most right-wing and religiously conservative in Israeli history — to limit the influence of the country’s most powerful court.
Reasonableness is a legal standard used by many judicial systems, including in Australia, Britain and Canada. A decision is deemed unreasonable if a court rules that it was made without considering all relevant factors or without giving relevant weight to each factor, or by giving irrelevant factors too much weight.
Mr. Netanyahu’s political allies say that reasonableness is too vague a concept, that it was never codified in Israeli law, and that judges apply it in subjective ways. The Supreme Court angered the government this year when some of its judges used the tool to bar Aryeh Deri, a veteran ultra-Orthodox politician, from serving in Mr. Netanyahu’s cabinet. Judges said it was unreasonable to appoint Mr. Deri because he had recently been convicted of tax fraud.
The bill was an amendment to a Basic Law — one of the body of laws that have quasi-constitutional status in Israel — and Israeli analysts say that the Supreme Court has so far never intervened in, or struck down, a Basic Law. The high court has discussed such laws in the past but never ruled on them.
In September, the justices heard an appeal filed by groups opposing the law. Over 13 hours of arguments, the judges’ questions and statements indicated that several members of the court had concerns about the law.
“The duty to act reasonably also applies to the government and its ministers,” the chief justice, Esther Hayut, said in one exchange. But if the court were barred from using the reasonableness standard, Justice Hayut added, “Who ensures that they do indeed act reasonably?”
The divisions over the law are part of a wider ideological and cultural standoff between Mr. Netanyahu’s political allies and their supporters, who want to make Israel into a more religious and nationalist state, and their opponents, who hold a more secular and pluralist vision of the country.
Mr. Netanyahu’s right-wing coalition partners have argued that the Supreme Court had too much leeway to intervene in political decisions; that it undermined Israeli democracy by giving unelected judges too much power over elected lawmakers; and too often acted against right-wing interests.
Opponents fear that the law will make the court much less able to prevent government overreach. They say that the government could find it easier to end the prosecution of Mr. Netanyahu, who is on trial on corruption charges, and to restrict civil liberties or undermine secular aspects of Israeli society.