At long last, Israel showed that it is a country with a military, not a military with a country. Time will tell whether amending the “Basic Law: The Judiciary” by reducing its reasonableness clause will help create a better balance between Israel’s three branches of government. But something much more important has already been achieved.
Despite facing mass protests and unprecedented pressure generated by former IDF generals and reservists – who warned Prime Minister Benjamin Netanyahu that if he didn’t halt the bill, they would cease doing their military duty – the Knesset passed the legislation. By doing so it didn’t bow to blackmail.
That is great news for Israel’s democracy.
The IDF is a “people’s army” with a compulsory draft for most eligible 18-year-olds, both male and female. With every citizen either having served in its ranks, or having friends and family who did, it is arguably the most trusted institution in the country.
In a cynical effort to impact a key policy of the elected parliament, a number of former security chiefs – backed by big bucks, fawning media, and a sophisticated public relations campaign – breached that trust. Thankfully, their endeavor failed.
Good generals know how to wage war. But by the very nature of their positions, which entail spending the bulk of their adult lives in or under the command of others, they often know little about the workings of democracy. At any rate, governments beholden to a class of military elites are traditionally known as “banana republics.’’
And the fact that Israel’s duly elected government did not cave to coercion on the part of former generals and security chiefs is much more important to democracy than curbing the ability of judges to overrule laws on the grounds of the subjective standard of “reasonableness.”
To set the record straight: In Israel, all executive decisions are subject to judicial scrutiny. The Supreme Court has the authority to invalidate any decision found to be unlawful, based on specific stipulations in the law. Over the course of the past three decades, however, the Israeli judiciary went a step further with its “reasonableness” doctrine, which is broader in scope than in any Western democracy.
This doctrine allowed the Supreme Court to overturn administrative decisions that it deemed “unreasonable,” without the need to base its judgment on laws and statutes. Consequently, the court nullified government appointments and decisions that had been made in full accordance with the law, solely on the basis of a judge’s perception of what he or she considered “reasonable” or “unreasonable.”
Indeed, this doctrine granted judges unchecked discretion to apply their personal preferences to decisions made by elected officials or their appointees. That grossly unreasonable reality needed fixing.
Fixing Israel's reasonableness standard was sorely needed
THE AMENDMENT in question, passed on Monday, July 24, 2023, specifies that although appointed officials will remain subject to judicial scrutiny under the grounds specified in law, the Supreme Court will no longer dictate government and ministerial decisions solely on the grounds of reasonableness.
After the amendment passed, a former Supreme Court justice rightly clarified that “the court can be creative in its judgments.” This was an allusion to the fact that the court still has at its disposal many other tools to nullify laws and appointments that it “disapproves of.”
These include statutory authorization, discrimination, irrelevant considerations, conflict of interest, and proportionality. The latter is an ambiguous and largely subjective term, making it questionable whether the reduction of the reasonableness clause alone will provide an effective check to the Court’s power.
Still, the narrowing of the “reasonable clause” was necessary for restoring some of the power of the executive branch, granted its mandate by the people. Time will tell whether the amendment turns out to be an overreach, as its detractors fear, or insufficient, as others attest.
In either event, the law can be amended again by a parliamentary majority if the Knesset sees fit. That is the essence of democracy.
Most importantly, in its effort to find a better balance between the three branches of government, Israel passed the “banana republic test,” proving that it is a vibrant democracy with a military that is subordinate to the elected government and not vice versa.
The writer is a former head of the International Institute for Counter-Terrorism’s office in Washington and a senior analyst at Acumen Risk Ltd., a risk management firm.