The Israeli Law Professors’ Forum for Democracy submitted today (20.8.2023) a request to join as amicus curiae (“friend of the court”) the petitions against the “Unreasonableness Amendment.” This amendment became law on Monday 24 July 2023. It amends Section 15 of the Basic Law: The Judiciary, which defines the jurisdiction of the Supreme Court sitting as a High Court of Justice to review governmental acts and decisions. According to the Amendment, no court of law, including the High Court of Justice, may consider and/or pass judgment on the reasonableness of any “decision” of the Cabinet, the prime minister, or any minister; nor may a court give an order on the said matter based on its purported unreasonableness.
The Forum’s amicus brief presents for the first time, on the basis of comprehensive and in-depth historical and comparative research, the serious flaws that fell in the hasty and inappropriate legislative process conducted in the Constitution, Law and Justice Committee of the Knesset. In particular, the brief argues that the Unreasonableness Amendment was enacted in a flawed procedure that is not compatible with the manner in which basic laws should be enacted. Additionally, the legislative process in this case did not follow the procedural rules for enacting basic laws at the initiative of a Knesset committee. The brief details how a procedure intended for uncontroversial matters was misused in this case.
With regard to the substance of the Amendment, the brief argues that stripping the jurisdiction of the courts to exercise judicial review on the reasonableness of governmental decisions, without establishing an equivalent, equally independent procedure as a substitute, amounts to a misuse of the Knesset’s constituent power, and even exceeds its authority as a constitutional assembly as it undermines the existence of an independent judiciary. Judicial independence is a central and fundamental cornerstone of democracy, alongside fair elections, rights and liberties, institutions providing checks and balances and the rule of law. Such jurisdiction stripping severely affects judicial oversight of the executive branch, and thus further deteriorates Israeli democracy.
Furthermore, the brief argues that the Unreasonableness Amendment must be examined alongside and in the context of the other legislative steps planned by the government, and in light of the existing system of checks and balances. The experience of other countries makes clear that the weakening of judicial review is a central pillar of processes of democratic erosion, as it removes obstacles facing a government seeking to consolidate its power, and makes it easier for those in power to undertake further institutional changes. Given the importance of maintaining independent courts in the context of democratic backsliding, and the comparative experience showing that democratic deterioration is accelerated when judicial independence is compromised, the exercise of judicial review over constitutional amendments harming the judicial function is necessary in order to protect democracy.
Finally, the brief argues that the combination of procedural and substantive defects further aggravates the unconstitutionality of the Amendment.
Through this brief, supported by 150 senior faculty members from all law faculties in Israel, the legal academic community offers to assist the High Court of Justice in the forthcoming important discussion triggered by the petitions concerning the fundamental values of the State of Israel.
Full copy of the brief (in Hebrew):