Judicial reform hits another inflection point with the reasonableness bill

LEGAL AFFAIRS: Sunday is still many hours and minutes away, and Elbashan said that reaching a compromise is still a possibility.

 MK SIMCHA ROTHMAN, head of the Constitution, Law, and Justice Committee, takes a selfie with MK Ofir Katz after a committee meeting on the reasonableness bill this week (photo credit: YONATAN SINDEL/FLASH90)
MK SIMCHA ROTHMAN, head of the Constitution, Law, and Justice Committee, takes a selfie with MK Ofir Katz after a committee meeting on the reasonableness bill this week
(photo credit: YONATAN SINDEL/FLASH90)

The judicial reform once again reached an inflection point on Wednesday night, as the reasonableness standard bill passed its Constitution, Law and Justice Committee vote to be sent to the Knesset plenum.

The final readings for the amendment to Basic Law: The Judiciary are expected to take place on Sunday, but the reform has been on the cusp of legislation before, and protests and calls for compromise have risen to their own crescendos.

The trajectory of the proposal to limit the reasonableness standard has largely been steady since Justice Minister Yariv Levin’s judicial reform announcement in January, but until the final vote, nothing is certain.

The reasonableness standard

The reasonableness standard allows for courts to strike down government administrative actions if they are deemed extremely beyond what a responsible and reasonable authority would decide. As a common law doctrine, it is not formalized in written legislation, but created through the rulings and opinions of judges.

 MK GILAD KARIV reacts during the committee meeting on the reasonableness bill this week (credit: YONATAN SINDEL/FLASH90)
MK GILAD KARIV reacts during the committee meeting on the reasonableness bill this week (credit: YONATAN SINDEL/FLASH90)

At the heart of the judicial reform lies an argument about the boundaries and relationships between the different branches of the Israeli government, which was never settled by a constitution.

Many on the right side of the political spectrum see the development of the reasonableness standard as part of an unsanctioned expansion of power by the judiciary. To them the standard is an entirely subjective tool that allows for judges to supplant the authority of democratically elected officials. Policy becomes dependent on the worldviews of unelected officials, it has been argued.

One of the chief policy concerns of those critical of reasonableness has been government appointments. To underscore this problem of authority, after Levin announced his proposals, the High Court of Justice struck down the appointment of Shas chairman Arye Deri as interior and health minister, ruling the appointment of a man repeatedly convicted of corruption while in public office unreasonable.

Who sits in government, reformists argue, should not be in the hands of unelected officials but in the hands of representatives chosen by voters. What is reasonable or not should be decided at the ballot box.

Those championing the reasonableness standard argue that the Israeli system, with its poorly enumerated branch boundaries and powers, has very few checks and balances needed in a liberal democracy. Pure democracy presents the danger of a tyrannical majority that strips away the rights of a minority and preys upon them. Reasonableness is one of the few tools that the court has to check government excess that is arbitrary, capricious, or infringes on an individual’s rights.

The reasonableness standard creates a professional bar for politicians, opposition members have argued, forcing them to explain their reasoning to the electorate for why they are pushing a given policy.

Citizens also need a means of recourse for extremely unreasonable government decisions beyond that of elections, MKs have noted in Law Committee debates. Even in Israel, elections occur only so often, and citizens often cannot wait for the polling stations to open to be able to hold their representatives accountable.

From Levin to the Knesset table

The bill placed on the Knesset table would restrict any court, high or low, from hearing appeals on reasonableness or making judgments on the standard against the administrative decisions of the government, prime minister or ministers.

This is a far cry from Levin’s initial January proposal – the complete elimination of the doctrine. However, the basis of the committee bill has changed little since Law Committee chairman MK Simcha Rothman first verbalized his approach to the issue on January 18. Much of the basis of his position was the writing of High Court Justice Noam Sohlberg.

“The original version of the ‘unreasonableness’ law was based on chief justice [Moshe] Landau’s view that the court should not interfere in executive actions for reasons other than those well-defined in the law,” said an official for the Kohelet Policy Forum, a libertarian NGO that has advocated for judicial reform for years and advised the government on reform legislation. “The current version is based on Justice Sohlberg’s view that this restriction should be applied only to elected officials but not to the entire executive branch.”

Sohlberg wrote in Hashiloach in 2020 about the need for objective approaches in judgment and preventing the court from overstepping its bounds and treading on the authority of other branches. Sohlberg didn’t call for a complete abolition of reasonableness, but for creating a distinction between elected political officials and nonelected professional officials. The justice also characterized the decisions between these two groups as largely being of policy outline and policy implementation, respectively. While he argued that democratic legitimacy is lacking for the court to interfere in general policy, how policy is implemented in specific bureaucratic action, such as tenders, permits, and licenses, should be subject to reasonableness. The civil servants who make these decisions, which more directly impact citizens, have no accountability by elections, a gap that can be filled by reasonableness.

The justice remarked on Monday that he thought that the means to do this should be through judicial rulings and written opinion, not through legislation. While he clarified that this was a comment on his previous lectures and writings and not on current events, opposition members were quick to attack the legitimacy of the advancing bill, which Rothman and coalition have championed as a manifestation of “Sohlberg reasonableness.”

Another way in which the reasonableness bill was legitimized was through alleged consensus. At the judicial reform’s previous inflection point in March, when the Judicial Selection Committee bill was placed before the Knesset for final readings and mass protests brought the country to a halt, Prime Minister Benjamin Netanyahu decided to freeze legislation and endorsed negotiations between the coalition and opposition at the President’s Residence. Rumors were abound during these negotiations, with reports of general agreement on reasonableness. Israeli media claimed that reasonableness would be restricted for full government decisions, but the standard would still be applicable to the decisions of individual ministers and state bodies.

President Isaac Herzog proposed in “The People’s Outline” that reasonableness standards not apply to government decisions of policy and ministerial appointments during plenary sessions. Former justice minister Prof. Daniel Friedmann, Ono Academic College Jerusalem Multicultural Campuses dean Prof. Yuval Elbashan, and other drafters suggested a reform outline in which reasonableness be limited from use against appointments.

Revisions and attempts at compromise

On Monday, the reasonableness bill was opened to reservations. Almost 28,000 reservations on the bill’s text were submitted and voted down, though many were immaterial and filed to serve as a form of filibuster.

Elbashan and Hebrew University law professor Yoav Dotan, a critic of judicial activism excess and an expert who, like Elbashan, had been invited to speak at the Law Committee, told The Jerusalem Post that there had been no changes to the bill since it was drafted this summer. Any changes were to the tone of the bill, Elbashan said.

Reference to “elected officials” was removed, over opposition concerns that the term was too broad and would extend to local authorities such as mayors. Initially, an attempt was made to placate these fears by adding a section about how the term would be defined at a later date with additional legislation.

Another element added to the bill’s text was a clarification on the decisions that were protected. Not only were active decisions by the prime minister and other ministers immunized, but the decision not to exercise power as well.

Dotan said that the bill lacks technical specificity.

“The problem with the current bill is that it is too sweeping,” Dotan said. “It throws the baby out with the bathwater.”

Dotan argued that the bill fails to make distinctions between different types of executive branch actions and between the different political echelons. The personal decisions of ministers are not the same as general administrative matters. He said that there are solutions, such as a draft he submitted that fleshed out these differences.

Elbashan proposed a compromise bill that would prevent the use of a reasonableness standard against full government decisions, and would not be able to cancel the actions of ministers if they related to policy matters or were discussed and approved by the government in plenary sessions. He also proposed that appointments be immunized from application of the standard when they require Knesset approval. To ensure accountability when the corrective measures of elections aren’t relevant, Elbashan said that reasonableness would apply to transitional governments, the regimes ruling from the announcement of elections until the establishment of a new government.

On the political level, Dotan said it is unclear whether the government wants to make changes to those technical issues. Rothman had not seriously been considering changes to the bill.

“Altogether, I think the goal is to get rid of the High Court as we know it,” said Dotan, adding that it is not a hidden agenda and openly stated.

Elbashan said that Rothman and other coalition members were ready for compromise, and while not happy about all the proposals, wanted to reach an agreement. He blamed the lack of consensus on extreme elements that were guiding policy in the Law Committee and President’s Residence.

“If you let Kohelet, or Israel Democracy Institute, or Kaplan Force [protest group] drive the agenda, you get the extreme,” said Elbashan.

What will be the result of the bill’s passing?

Elbashan said that “while I personally prefer not to cancel it [the reasonableness standard], I don’t think it’s as major of an issue,” but said “I would prefer not to pass the bill now.”

While some were characterizing reasonableness as the only tool available to the court, Elbashan reminded that it isn’t.

Critics of the bill claim that the reasonableness standard is essential in protecting individual rights, but proponents have been quick to argue that other common law tools like proportionality are used more commonly in cases of human rights violations.

Others argue that corrupt practices will become more common as officials are no longer required to lay out their policy reasoning with the requirement to act reasonably. Politicians can provide prizes to their supporters from the resources of the entire country.

As the distinctions between different decisions and officials aren’t more fleshed out, critics have said that civil servants will be able to export final decisions to ministers to immunize administrative decisions that might otherwise fall under the court’s scrutiny.

For those in favor of the bill’s passage, restricted reasonableness will provide the government with the opportunity to appoint politicians, like Deri, to ministerial roles, securing the coalition’s stability.

Proponents have said that without judicial review on administrative actions, the government will be free to pursue its agenda without extreme interest groups interfering with political petitions to the High Court.

Will the bill pass, or another freeze?

The question of whether the bill will pass or the coalition and opposition return to the negotiating table hangs over the Knesset this weekend.

National Unity leader Benny Gantz issued a call for a negotiated consensus on the reasonableness bill. He said that Israel could not be disunited while its security is at stake. The vast majority of the Israeli public wants a broad agreement, wants reform, but not upheaval, said Gantz.

The Likud said that it had hoped to hear “a more serious proposal” from Gantz instead of preconditions, and that if he is serious, he is invited to come to Netanyahu’s office immediately. Gantz and opposition members had torpedoed negotiations in June “for no reason.”

Labor MK Merav Michaeli said that there could be no negotiations if the reasonableness bill passes. The Kaplan Force said that there would be no compromise on democracy, and that it would organize protests for Thursday that would save the country.

Dotan said that he could only see a change in the bill happening through the pressure of protest.

Elbashan said that what happens next is in the hands of Netanyahu, but that Levin would stay with him, and it is a question if they will part ways politically.

While it seemed that there was a lot of noise confusing the situation, Elbashan said that “there is a lot of noise from the extremes that believe only they are right,” and not from the majority groups. At such a sensitive time, he said, these extremists carry not just a match past an open can of gasoline, but a torch.

Sunday is still many hours and minutes away, and Elbashan said that reaching a compromise is still a possibility.

“Until the third reading, anything is possible.”