Anti-judicial reform protest groups expressed outrage on Monday over Israeli media reports that the opposition and coalition were considering a deal that would adopt minor reform provisions and prevent the government from unilaterally legislating on the legal overhaul.
The two provisions reported by Maariv to be on the table are the restriction on the reasonableness standard and the “legal advisers law.”
The extreme unreasonableness standard is an administrative law tool that allows the court to engage in judicial review of government decisions that are deemed to be beyond the scope of what a reasonable and responsible authority would undertake.
Critics of the doctrine argue that the standard is a subjective, modern creation of the High Court of Justice as part of an ever expanding and powerful judicial toolbox. Proponents of the doctrine contend that reasonableness is a longstanding part of Israeli law and is only rarely employed in extreme circumstances to protect the rights of Israeli citizens against government excess.
The reasonableness doctrine can be used by the court to strike down ministerial appointments. The day after Justice Minister Yariv Levin’s announcement of the judicial reforms in January, the hearing was held on the appointment of Shas Chairman Arye Deri to the Interior and Health Ministries. The High Court ultimately canceled the appointment because it deemed that it was not reasonable for a repeat convicted criminal to serve as a minister.
The Maariv report indicated that the deal would be made on the restriction of reasonableness – But it isn’t clear what framework this would follow. Levin initially called for a complete end to allow reasonableness, although in discussions by the Knesset’s Constitution, Law and Justice Committee, MK Simcha Rothman proposed that the standard only apply to civil servants.
In late May, Israeli Media reports alleged that the coalition and opposition had come close to reaching an agreement on reasonableness that would restrict the common law doctrine to full government decisions. In theory, this would mean that appointments by just the prime minister could be reviewed under reasonableness doctrine.
What is the Attorney-General Law?
The other proposal named by Israeli media is the “legal advisers law,” which is generally considered more sensitive than reasonable.
As with Reasonableness, the rumors on Monday have not specified to what degree the “legal advisers law” would be implemented, and there are several principles coalition reformists have sought to amend among legal advisers to government departments.
Many reformists have sought to limit the legal opinions of government legal advisers to just offering advice, rather than making their opinions legally binding. Proponents say that legal advisers are limiting the ability of elected officials to legislate and govern while critics argue that this would reduce the efficiency of the process of drafting legislation, which may be poorly constructed or in contradiction of Basic Laws.
Others, perhaps most notably National Security Minister Itamar Ben-Gvir, have called for government officials to be able to seek private representation before the High Court of Justice, rather than legal representation by the Attorney-General’s office.
Ben-Gvir and other critics have argued that government legal advisers do not always have their best interests in mind, and may argue before the court in contradiction to the will and policies of a government official.
The “legal advisers law” could also contain a provision which requires government legal advisers to support and hold the opinion of their corresponding elected officials, as detailed in the original proposal of Levin.
Protesters have championed the importance of the independence of government legal advisers as being important to democracy.
Until the deal reported by Israeli media is confirmed, it will be difficult to know which side has benefited more, or if a compromise has indeed been reached.