Coalition to restart limited judicial reforms; up first, limiting judicial review based on ‘reasonableness’

The Knesset Constitution, Law and Justice Committee on Sunday, began deliberations on a bill to outlaw the use of the “reasonableness” standard in judicial review of government or ministerial decisions, including appointments.

Committee Chairperson Simcha Rothman said the bill “serves the democratic interest” by giving proper weight to the decisions of elected government officials versus unelected judges.

The bill would insert the following amendment into the Basic Law, Judiciary: “Anyone who has jurisdiction by law, including the Supreme Court, shall not judge or issue an order against the government, the prime minister, a ministerial minister, or any other elected official as determined by law, regarding the reasonableness of their decision.”

Critics argue the amendment is too broad and does not allow for any means of judicial review. The language of the bill is sufficiently broad, as it would even forbid discussion by justices over the reasonableness of a decision by an elected official. [The Hebrew word for 'judge' can also refer to critical discussion.]

National Unity party head Benny Gantz said the complete removal of judicial review over government decisions would allow for corruption.

“This is a law for whitewashing corruption. It’s a law that removes limits from the government,” Gantz told the Knesset committee.

The committee’s legal advisor, Gur Bligh, said the bill should be narrowly focused to address specific aspects of decision-making by elected officials.

Yesh Atid Knesset Member Karine Elharrar, who was elected to the Judicial Selection Committee earlier this month, said the coalition was following the “Poland protocol," referring to changes in the Polish government that have led to the elevation of the executive branch over the other branches in a manner widely-considered as anti-Democratic.

“They do it bit by bit – in moderate steps – and in the end they control the system,” Elharrar said.

Israel's Deputy Attorney General Gil Limon spoke at the Monday committee meeting, stating his belief that the difficulties in the application of the reasonableness clause “do not justify its cancellation.”

“This proposal, if adopted, would eliminate an important guarantee that ensures that the government acts fairly and without arbitrariness towards the individual. It will severely harm basic democratic values, such as the propriety of the administration's activity, the integrity of the public service, the rule of law, and public trust," he said. "Therefore, the Attorney General's position is that there is no room for advancing the proposal and, therefore, we oppose it,” he said on behalf of Israeli Attorney General Gali Baharav-Miara.

According to the Walla news site, Netanyahu “wants to examine the consequences and public reactions of the protesters before taking further steps” towards judicial reform.

Coalition members say the bill corrects a power imbalance that allowed unelected officials to overrule decisions of elected governmental officials without being accountable to any other entity.

Last Friday, Rothman caused uproar in the Constitution, Law and Justice Committee meeting as he read statements criticizing a Supreme Court ruling on the reasonableness of a previous government decision. Several members of the Yesh Atid party began to shout at him, saying he was insulting the Supreme Court.

Only after one of the Yesh Atid members was removed for disrupting the proceedings, did Rothman reveal that he was reading a past statement by Yesh Atid leader Yair Lapid, who had criticized the use of the reasonableness standard against a decision by his government.

The coalition has claimed that some of the reforms it now proposes were once demanded by opposition members.