'We won't negotiate a coup': Gantz calls on Netanyahu to stop judicial reform

New judicial reform bill set discussed at committee • Rothman: Gantz, opposition are hypocritical regarding judicial reform

 MK Benny Gantz attends a Constitution, Law and Justice Committee meeting on the planned judicial reform, at the Knesset, the Israeli Parliament in Jerusalem on June 25, 2023 (photo credit: YONATAN SINDEL/FLASH90)
MK Benny Gantz attends a Constitution, Law and Justice Committee meeting on the planned judicial reform, at the Knesset, the Israeli Parliament in Jerusalem on June 25, 2023
(photo credit: YONATAN SINDEL/FLASH90)

National Unity leader MK Benny Gantz called for Prime Minister Benjamin Netanyahu to stop a new judicial reform bill draft discussed by the Constitution, Law and Justice Committee on Sunday, the first act of reform legislation since the freeze in March.

"We cannot negotiate a coup in incremental payments, today it is this law and tomorrow that law. It was agreed not to do so," Gantz said at the Law Committee. "I suggest that you return the mandate of this discussion to the prime minister, and I suggest that the prime minister stop everything and convene the Judicial Selection Committee, and return to the President's Residence to hold discussions."

Gantz decried the new bill, which would restrict the unreasonableness standard, saying that it would whitewash corruption and remove restrictions on the government.

Rothman: Gantz, opposition are hypocritical regarding judicial reform

Constitution, Law and Justice committee chairman MK Simcha Rothman dismissed Gantz's call for talks as hypocrisy, as the negotiations had been torpedoed by the opposition.

"The whole purpose of the talks at the President's Residence was to create fireworks and protests," said Rothman.

Rothman noted that the basis of the new bill, which would end the use of reasonableness in judgements by the High Court of Justice and lower courts on decisions by the government and all elected officials, was based on the solutions proposed by Justice Noam Sohlberg.

Removing the doctrine’s application to elected officials served the democratic interest by putting issues in the hands of the voters, and not in subjective interpretations of the reasonableness doctrine.

Reasonableness is a common law doctrine that allows the courts to engage in judicial review of government administrative actions that go beyond the scope of what a reasonable and responsible authority would undertake. Committee legal advisor Dr. Gur Bligh said in the panel's preparatory notes that the doctrine is applied often in decisions that involve harming of rights and interests of individuals.

Bligh explained that critics of the unreasonableness standard contend that when the court uses the doctrine it usurps the government's authority and enforces its own views. Opponents question the expertise of the court to impress its own views on a professional matter, and it does so without the legitimacy or accountability of being a democratically elected body. Critics also say that the standard is highly subjective. 

Those that favor the use of the reasonableness doctrine in the Israeli legal system say that it has promoted norms of governmental decency and has served a key role in protecting citizens. With the increase of power of the executive and legislative over the years, proponents say that the tool is needed to hold the government in check. Without the doctrine, there would be a gap in the checks of accountability for the government that no other power could fill. They also say that the principle is only applied in extreme cases, and does not supplant the government's authority with the court's, but simply declares it as unacceptable without offering its own policy in exchange. When it comes to decisions on professional matters, Bligh noted that the courts rule on similar cases such as examination of medical malpractice cases. 

Bligh said that it was essential for the committee to explain its principal reason for restricting the doctrine. It also needed to clarify the wording of the bill, such as to which elected officials the law would apply. Bligh questioned if it would apply to all elected officials down to the level of mayors and local councils. He also wanted the committee to consider what would happen with civil servants who have had power delegated to them by elected officials. 

Restrictions on reasonableness 

The committee also needed to address the level of restriction on reasonableness. The bill does not completely eliminate reasonableness, as initially proposed by Justice Minister Yariv Levin in January.

Sohlberg's view of the doctrine is more restrictive, but Bligh notes that some argue for broader applicability for reasonableness, as the reluctance to use the tool leads to more violations of rights. Bligh said that Europe's courts focus more on the doctrine of probability, and that newer common law countries use narrower interpretations of reasonableness. Australia and Canada have reportedly expanded the interpretation over the years.

Bligh said that the reasonableness bill was different from past judicial reform bills in that other articles addressed the relationship between the legislative and judiciary, while the current bill addressed the boundaries also with the executive branch.