High Court dramatically overrules key judicial reform


The High Court of Justice: On Monday evening the court announced its ruling on petitions challenging the amendment to Basic Law: The Judiciary that was passed into law in July. The court ruled in an 8:7 majority vote to strike down the amendment in its entirety.

  • Twelve of the fifteen justices ruled that the Supreme Court possesses the authority to exercise judicial review of Israel’s basic laws, and to intervene in exceptional and extreme cases in which the Knesset has exceeded its authority as the branch of government empowered to legislate the provisions of the constitution through the passage of basic laws.
  • Former Supreme Court President Esther Hayut who is about to retire wrote: “In my view, it is not possible to square the amendment to the Basic Law on the Judiciary and the principle of the separation of powers and the principle of the rule of law, which are two of the most important characteristics of our democratic system. Such a violation at the very heart of our founding narrative cannot stand.”
  • Justice Isaac Amit wrote that “the State of Israel is in need of additional engines to strengthen democratic government. But the amendment to the basic law that eliminated reasonableness grounds with respect to anything related to decisions of the cabinet and its ministers moves in the opposite direction and further strengthens the power of the executive branch.”
  • Justices Noam Sohlberg and David Mintz dissented from the majority on the issue of the court’s jurisdiction to exercise judicial review of basic laws and of the court’s jurisdiction to rule on the issue. They argued that there is no source of authority under Israeli law for such judicial review. They added that even if such authority exists, the court should not have overturned the reasonableness amendment to the basic law because the case does not meet the criteria that the majority laid down for disqualification of a basic law.
  • The ruling was criticised by the government. Justice Minister Yariv Levin said “The judges’ decision to publish the decision during a war is the opposite of the spirit of unity needed at this time for the success of our fighters on the front.” He described the ruling as creating a “situation in which it is even impossible for the Knesset and the government to legislate basic laws or to make decisions without the judges’ approval.” The Likud party said that the Supreme Court’s decision “opposes the will of the people for unity, especially during wartime.”
  • Leader of  the Opposition Lapid praised the ruling. “The Supreme Court fulfilled its duty today in safeguarding Israeli citizens, and we give it full backing.” Minister Gantz called for broad agreement. “After the war, we will have to formalise the relationship between the powers and legislate a Basic Law: Legislation that will anchor the standing of basic laws. We will do that with broad agreement, with open discussion, thoroughly and with stateliness while maintaining respect between all citizens of Israel.”

Context: The Knesset’s decision to cancel the ‘reasonability standard’ in July was the first of the government’s planned judicial reforms to actually be passed into law.

  • The amendment to Basic Law: The Judiciary sought to cancel the court’s ability to use reasonability as grounds for striking down government decisions and appointments.
  • The government argued that the court possessed no legal or constitutional basis to review Basic Laws, seeing as they have quasi-constitutional status. During the hearing, the Likud  party stated that “The Knesset receives its authority from the people. The government receives its authority from the Knesset. The court receives its authority from the Basic Laws enacted by the Knesset.”
  • Opponents argued that Israel’s democratic culture is unique – the country possesses no second chamber, nor a written constitution, and the list system (which concentrates power over MKs to party leaders, as opposed to their being parliamentarians answerable to their constituency) ensures that the executive is generally able to exercise de facto control over a majority of the Knesset.
  • In this context, the existing system provides a vital separation of powers and an independent judiciary – with partial capacity for overruling the legislature and executive – provides a crucial brake on executive power and functions as an essential guarantor of liberal democratic norms and minority rights.
  • There is currently no distinction between the way the Knesset passes a Basic Law and a regular law (both require only a basic majority), leaving the special status of Basic Laws open to different interpretations and legal ambiguity.
  • Following the court’s announcement, the IDF Spokesperson Brig. Gen. Hagari was asked how Israel’s internal divisions could have influenced Hamas’s decision to launch its attack on October 7. Hagari said, “things will be clarified in the in-depth inquiry,” he added. “presumably the feature of a rift, the military’s readiness, maybe in its perception that is one of the features that is linked to this.”
  • He added that contrary to Hamas’s assumptions, the IDF was now fighting with full unity in its ranks, which he said reflected the strength of Israeli society.

Gaza Strip: The IDF continues its operations against Hamas military targets in the south, centre and north of the Gaza Strip.

  • On Monday the IDF announced another reservist killed in action, by an explosive device in the northern Gaza Strip. Another 11 soldiers were wounded in the incident, two of whom are hospitalised in serious condition.
  • The IDF also revealed that 29 of the 170 soldiers killed in the ground operation, were killed either in accidents or as a result of friendly fire. Eighteen were killed by friendly fire as a result of misidentification; two were killed by friendly fire in incidents in which troops fired in excess of restrictions; and nine were killed in other accidents.
  • On Sunday the IDF confirmed that another Hamas Nukhba commander was killed in an airstrike.  Adel Mesmah was the commander of the forces that targeted Kibbutz Kissufim on October 7. He also sent terrorists into other kibbutzim, including Beeri and Nirim. He then went on to command Hamas forces inside the Gaza Strip until his death.
  • Also in northern Gaza, the IDF located and destroyed the tunnels of Hamas’ general headquarters. According to the IDF Spokesperson, “in the tunnels was an electricity network, ventilation and sewage infrastructure, prayer rooms and resting rooms.” The tunnel was connected to an apartment used by Hamas leader Sinwar. The IDF added they, “discovered that a strategic tunnel shaft was located on the basement floor… apparently used by the senior officials of Hamas’ Military and Political Wing. The apartment is part of a long and branching tunnel network…The tunnel was built so that it would be possible to stay inside it and conduct combat from it for long periods of time.” Footage of the tunnel can be seen here.
  • Despite the continued fighting, the IDF has begun to reduce the number of troops deployed inside the Strip. Two reservist brigades have been discharged, and three standing army brigades have been sent back into training.
  • In parallel, Hamas continue to fire rockets into Israel. At midnight, as 2024 began they fired at least 20 rockets towards central Israel, at least 10 were intercepted.
  • The head of Southern Command Maj. Gen. Yaron Finkelman met with the troops in central Gaza, and said, “The combat will continue in a range of methods, a range of intensities and shifting forms.”

Northern border: Hezbollah continues its attacks on military and civilian targets close the northern border.

  • In response the IDF have continued to target the cells that launch the attacks as well as Hezbollah infrastructure.
  • In one incident five soldiers sustained light injuries after coming under fire from Lebanon.
  • Hezbollah announced that another fighter was killed last night, taking their total to 138.
  • In addition, five rockets were fired into Israeli yesterday from Syria, they all landed in open areas on the Golan.
  • Syrian sources accused the IDF of attacking targets in Syria in retaliation. According to Syrian media, the IDF attacked a number of targets in the suburbs of Damascus early this morning.
  • Israel has not officially commented, but this is thought to be the sixth attack inside Syria, ascribed to Israel in the past week.

Looking ahead: Israeli media report that the IDF has drafted a plan to empower local clans in Gaza to  distribute humanitarian aid. The plan, which will be presented today to the security cabinet, would divide Gaza into regions and sub-regions, each one of which is to be governed by a clan. In addition to distributing humanitarian aid entering from Egypt and from Israel, the clans will be tasked with overseeing civilian affairs in Gaza for an interim period.

  • Prime Minister Netanyahu told the Knesset Foreign Affairs and Defence Committee that if the Palestinian Authority wants to participate in governing the Gaza Strip on the day after, it must undergo fundamental change and to prove it has done so in the way it governs in the West Bank.
  • Minister of Defence Gallant has suggested the displaced communities, within a range of four to seven km north of the Gaza strip, will soon be able to return home.
  • In an unprecedented move, Israel intends to send a representative to the International Court of Justice at The Hague and to demand that the court dismiss the motion that was filed by South Africa asking the court to issue an interim injunction instructing Israel to desist from all military action in the Gaza Strip.
  • National Security Council Director Tzahi Hanegbi told Yediot Ahronot, “The State of Israel has been a signatory of the Genocide Convention for the past six decades, and we certainly won’t boycott the hearing. We will be there and will repel the absurd suit, which constitutes a blood libel. The Jewish people has experienced on its own flesh more than any other nation what genocide is. Six million of our people were slaughtered with boundless brutality. Similar brutality was used against the citizens of Israel in the October 7 massacre, but this time we have the ability to defend ourselves against those who rise up to annihilate us. The absurd suit against  the victim’s right to self-defence is a disgrace, and our expectation from all civilized countries is to show solidarity with that assertion.