High Court of Justice 5658/23 The Movement for the Quality of Government in Israel v.

The Knesset and

7 other petitions

Date of issuing the verdict: 20th of the Tabet HaShef'd (1.1.2024).

Judges of the panel: President (acting) A. Hayut, acting president E. Fogelman and judges Y. Amit, N.
Solberg, D. Barak-Arez, E. Baron (acting), D. Mintz, Y. Elron, Y Willner, E. Grosskopf, A. Stein, C. Kanafi-
Steinitz, H. Khabov, Y. Kosher and R. Ronan.

The Supreme Court ruled today by a majority opinion (12 out of 15 judges) that it has the authority to
conduct judicial review of basic laws and to intervene in exceptional and extreme cases where the
Knesset exceeded its founding authority.

The Supreme Court added and ruled in a majority opinion (8 out of 15 judges) that Amendment No. 3 to
the Basic Law: the Judiciary, which comprehensively excluded the judicial review of the reasonableness
of the decisions of the government, the prime minister and the ministers, should be declared null and
void. This is due to the severe and unprecedented damage to the nuclear characteristics of the State of
Israel as a democratic state.

In view of the importance of the issues that arose in the petitions against Amendment No. 3, the
discussion of them took place on September 12, 2023 before the full composition of 15 judges of the
Supreme Court. About a month after the debate, on October 7th, the reality of our lives changed beyond
recognition and we have been in a tough and determined fight against murderous terrorist organizations
ever since. But silence No. 3 remains intact, and taking into account the last date when President (retired)
Hayut and Judge (retired) Baron are allowed to issue judgments in accordance with what is stated in the
Law of the Courts [combined version], 1984-1984, the judgment was given on the petitions .

Most of the judges of the panel (President (acting) Hayut, Acting President Fogelman and judges Amit,
Barak-Erez, Baron (acting), Wilner, Grosskopf, Stein, Knafi-Steinitz, Kabob, Kosher and Ronan) ruled that
in exceptional and extreme cases a house is authorized The Supreme Court in its session as the High
Court of Justice to declare the nullity of a basic law which for some reason deviates from the constitutive
authority of the Knesset. Regarding this matter, it has already been ruled in the High Court of Justice
5555/18 Hasson v. Knesset (2021) (the matter of the "Basic Law of the Nation") that the Knesset as a
constituent authority is not "all-powerful", and that it does not have the authority - not even in the Basic
Law - to negate or directly contradict the characteristics the nuclear laws of the State of Israel as a Jewish
and democratic state. In view of these limitations and in order to be able to enforce them, most of the
judges believed that the authority of the court to conduct judicial review of the basic laws should be
recognized. Some of the judges based this conclusion on our extraordinary constitutional structure, which
is characterized by, among the permit, in the absence of any dedicated and separate procedure for the
establishment of constitutional norms; on the problematic practice of establishing and amending basic
laws which indicates their contempt and their transformation into a game tool by the political majority; as
well as on the role played by the court in protecting the constitutional enterprise. Some judges
emphasized in this context the Declaration of Independence As a basis for the existence of judicial review
of the basic laws; and others found the anchor of authority in the basic law: the judiciary, according to
which the High Court of Justice was granted the authority to grant remedies for the sake of justice and
orders to all state authorities.
In the ruling, it was determined by the majority opinion (President (acting) Hayut, Acting President
Fogelman and judges Amit, Barak-Erez, Baron (acting), Grosskopf, Kebov and Ronan) that the
amendment at the center of the petitions - Amendment No. 3 to the Basic Law: The Judiciary - is an
extreme case where the Knesset exceeded its constituent authority and therefore there is no escape from
the declaration of its nullity. It was emphasized that this is an amendment whose exceptional and
sweeping wording prevents all courts from discussing and hearing arguments regarding the
reasonableness of the decisions of the government, the prime minister and the ministers, and this in
relation to any decision, including a decision to refrain from exercising authority. The majority opinion
further believed that the interpretation of the amendment leaves no room for doubt that it also applies to
unreasonable decisions and radically unreasonable decisions. As a result, an unprecedented damage is
caused in the scope of two of the nuclear characteristics of the State of Israel as a democratic state - the
principle of separation of powers and the principle of the rule of law. In this context, it was noted that the
amendment significantly strengthens the already concentrated power in the hands of the government and
its subordinates and blocks the individual's ability to receive relief in a series of situations in which his
important interests may be seriously harmed as a result of the government's actions. It was also
emphasized that the amendment leads to the fact that precisely the most significant factors in the
executive authority are actually exempt from the duty of reasonableness; It leaves entire areas without
effective judicial review; prevents the protection of public interests such as the purity of morals and
integrity of the administrator; And may lead to a fundamental change in the face of the public service in
the country, as well as a serious damage to the independence of the law enforcement system and the
abuse of governmental resources for the purpose of obtaining political advantages during an election
period.

Judge Y. Wilner believed that the amendment should be given a sustaining interpretation and therefore
there is no room to discuss the possibility of its cancellation. Judges A. Stein and G. Kanafi-Steinitz
believed that the amendment can and should be interpreted narrowly and therefore, there is no room to
interfere with it because it is a long way from those cases where it can be said that the Knesset exceeded
its constituent authority. Accordingly, Judges Willner, Stein and Knafi-Steinitz believed that the
amendment should be interpreted so that it would only block judicial review on the grounds of
reasonableness as it has developed since the High Court ruling 389/80 Dafi Zehava Ltd. v. the
Broadcasting Authority (1980), which focuses on examining the balance Among the various
considerations in the governmental decision ("equilibrium reasonableness"). According to their opinion,
the amendment according to this interpretation still allows intervention in cases of unfounded decisions,
which could have been interfered with even before the ruling regarding the Yellow Pages. Judge Kosher
refrained from ruling on the question of whether the amendment can be interpreted narrowly as stated,
and his position is that despite the amendment's damage to the separation of authorities and the rule of
law, it does not reach the high level that justifies interference with a fundamental law.

Judges Solberg and Mintz disagreed with the majority's position regarding the principled authority of the
court to conduct judicial review of the Basic Laws, and even its authority to decide on this question, and
noted that there is no source of authority that allows for such review. According to their approach, even
ignoring the problem of the court's authority, the amendment is a long way from the narrow limit that
applies to the majority judges' method on the Knesset's constituent authority. Judge Elron disagreed