The Supreme Court on the Reasonableness Standard: The Underlying Issues

On September 12, 2023, the Supreme Court held a hearing on the petitions against an amendment to the Basic Law: The Judiciary, which eliminates the Courts’s authority to overturn decisions by the Government and the ministers on the grounds of “unreasonableness.” The petitioners and the Attorney General argue that the amendment should be nullified, due both to flaws in the legislative process and to its contradicting the core values of Israel as a Jewish and democratic state. The Government and the Knesset, on the other hand, contend that the Court does not have the jurisdiction to nullify an amendment to a Basic Law, and certainly not in the present case, which concerns the rejection of grounds for review that do not exist in most other countries. It is too early to assess how the Court will rule. It has until the middle of January to give its decision, which could even become superfluous if a compromise is achieved that includes a refinement of the law. There is no doubt that this is one of the most extraordinary and sensitive legal proceedings ever held in Israel. However, it should be emphasized that the reasonableness standard is not at the heart of the momentous dispute that is dividing the nation, and the Court’s final verdict – whether it approves the amendment or annuls it – should not be seen as the end of the socio-political storm. Pnina Sharvit Baruch