Professor Yuval Elbashan, who is one of those leading the push for a compromise on the judicial reform, has expressed great concern over the possibility that Israel's Supreme Court will interfere on the issue of the reasonableness standard.
The Supreme Court is set to hear petitions against the reasonableness standard on September 12. All 15 justices will participate in the panel which will hear and discuss the petition.
The legislation, an amendment to the Basic Law: The Judiciary, limits the Supreme Court's ability to declare actions taken by the government "unreasonable." A decision by the Supreme Court to strike down an amendment to a Basic Law would be unprecedented and confer on the court even greater power, as Basic Laws have quasi-constitutional status beyond that of normal laws.
"In my view, the justices must not listen to the street," Elbashan told 103 FM Radio. "The Prime Minister as well said that he is in favor of the reform, and when he began the whole thing, he said that we need a compromise. We are very far from the end of democracy."
"Whatever the Supreme Court rules, we must respect. Period. The issue is that we need to regulate how to prevent the tyranny of the majority and also the tyranny of the minority. We do not have Basic Law: The Legislation or Basic Law: The Judiciary, and so it is patch upon patch and we become trapped in one crisis after another. The prime ministerhood of Netanyahu was approved by 11 vs. 0. If there were five conservative justices versus ten others, and with that majority they decided to invalidate a Basic Law, that's a process which is very unusual today."
He added, "Especially when there is such a large minority opinion, I have a hard time seeing it happen. There's no such thing as not respecting rulings, that's the beginning of anarchy. On the other hand, if the Supreme Court invalidates the law, there will be unearthly chaos here."
Regarding the decision to have all 15 justices present at the hearing, Elbashan told 103 FM, "The Chief Justice had no choice other than to expand the number of justices present, and she had no option to reject it out of hand - all of the choices were bad, and she made the most proper decision, in my opinion. The Supreme Court in the past two years has decided that it has the authority to discuss and even invalidate a constitutional amendment which is not constitutional. I am of the opinion that we have a real problem here, and therefore we need Basic Law: The Legislature, which will give it authority. In other words, it will define what a Basic Law in the Knesset is. I assume that it will say that a Basic Law cannot be invalidated."
"When the constitution is not written and we really are in the middle of a lot of chaos, right now the Basic Laws are legislated the same way as regular laws, and there are a lot of ways to make use of this negatively. The authority stems from a lack of options, as well. If there were another body which could discuss it, we would all prefer that it not be the Supreme Court, but there isn't. Just like there is no other prime minister who can deal with this. And so in this context, the decision by [Supreme Court Chief Justice Esther] Hayut to expand the number of justices [present] is the least awful thing."