HCJ 6038/23, Association for Civil Rights in Israel v. Knesset

Date of submission: August 8, 2023

Yesh Din has joined forces with 37 other human rights organizations, led by the Association for Civil Rights in Israel, in filing a High Court petition against the amendment to Basic Law: The Judiciary, which eliminates the reasonableness standard. The petition focuses on the harmful impact the amendment would have on the protection of human rights. The petitioning organizations argue that the severe curtailment of human rights protection expected from the amendment and the adverse impact it would have on the rule of law, separation of powers, and ethical conduct justify repealing it.

The organizations describe the harm the amendment would inflict on certain groups and communities, including Palestinians living in the OPT and East Jerusalem.

The petition argues that constitutional rights are inseparable from the ability to exercise them in practice, which depends on various administrative decisions. As such, judicial review examining the reasonableness of decisions made by ministers is critical for ensuring constitutional rights can be exercised.

The organizations further argue that while in most countries, the state has influence within its territorial boundaries, and, therefore, parliamentary powers apply mainly to citizens who may participate in the democratic process, the situation in Israel is unique in that the government and parliament make decisions concerning the daily lives and most fundamental rights of millions of people who are not citizens and do not participate in the democratic process.

The fact that the government has refused, for more than 56 years now, to withdraw from the occupied territories – thereby allowing Palestinians living in them to exercise their citizenship in a country of their own – while at the same time denying them full political rights – chiefly the right to vote and run for office – means that governmental power is concentrated in a manner that does not represent everyone affected by it.

One example is the Regularization of Settlement in Judea and Samaria Law 5777-2017, which was struck down by a majority opinion of the High Court of Justice. The law impacted the fundamental, constitutional rights of Palestinians, who can neither vote nor run for the Knesset, leaving them completely dependent on the High Court. Any encroachment on the High Court’s power to engage in effective judicial review of both administrative decisions and legislation impacting the rights of people living under military occupation, as well as any erosion of judicial autonomy and the judiciary’s independence from the government, could lead to dire consequences, wherein no authority would be able to hold the actions of the Knesset and the administration in the OPT to legal scrutiny.

The organizations further argue that the amendment would allow the government to compromise the judiciary’s independence and autonomy, thereby undermining the justice system’s ability to fulfill its main role – protecting human rights. The petition also describes how the hasty, superficial, predatory legislative process produced a shoddy, vague law that shrouds questions necessitating clarity, such as the court’s powers, in extreme uncertainty. The organizations maintain that the amendment exceeds constituent power (an unconstitutional constitutional amendment) and that constituent power has been abused simply to shield the amendment from judicial review.

The day after the petition was submitted, Supreme Court President Esther Hayut dismissed the petitioners’ motion to be added as party to previous petitions to repeal the amendment. She did, however, grant the petitioners’ alternative request to join proceedings as amicus curiae.

Petition status: Pending.