At fiery Knesset panel, legal advisers urge MKs to soften ‘extreme’ oversight bill

Coalition MKs attack AG during debate on ‘reasonableness’ bill, with committee chair Rothman accusing her of not protecting public interest; opposition MK slams ‘fascist worldview’

Carrie Keller-Lynn is a former political and legal correspondent for The Times of Israel

Religious Zionism MK Simcha Rothman chairs a hearing of the Constitution, Law and Justice Committee on the "reasonableness" bill, preparing it for its final Knesset reading, amid widespread national protests, hours after it passed a first reading, July 11, 2023. (Yonatan Sindel/Flash90)
Religious Zionism MK Simcha Rothman chairs a hearing of the Constitution, Law and Justice Committee on the "reasonableness" bill, preparing it for its final Knesset reading, amid widespread national protests, hours after it passed a first reading, July 11, 2023. (Yonatan Sindel/Flash90)

A deputy attorney general on Wednesday said that the coalition’s bill to ban judicial scrutiny over officials’ administrative decisions is “extreme” and poses “very severe harm” and “multi-system damage,” in testimony to the Knesset committee preparing the bill for its final floor votes.

Deputy Attorney General for Administrative Law Gil Limon said that the Constitution, Law, and Justice Committee’s bill “is the most extreme proposal possible to deal with the grounds of reasonableness – because it prevents any discussion of the grounds of reasonableness in relation to any decision by the government or a minister.”

“The proposal completely overturns the Supreme Court’s ruling on reasonableness,” he said, referring to opinions issued from the early days of the state.

Limon’s comments were echoed by the Knesset committee’s legal adviser, Gur Bligh, who advised the panel to amend the 52-word Hebrew bill to be “more limited and cautious,” because it posed the most “sweeping” cut to reasonableness among several proposals that have been floated publicly.

Committee chair MK Simcha Rothman of the far-right Religious Zionism party is committed to the coalition’s self-imposed deadline to finalize this amendment to one of Israel’s quasi-constitutional Basic Laws within the next two and half weeks, before the Knesset’s lengthy summer recess.

Rothman, one of the primary champions of the coalition’s broader vision to increase political power at the expense of judicial checks, dismissed Bligh’s comments out of hand.

Deputy Attorney General Gil Limon attends a Knesset Constitution, Law and Justice Committee hearing on the government’s bill to limit the courts’ use of the unreasonableness doctrine, July 4, 2023. (Yonatan Sindel/Flash90)

“The plenum said what it thinks,” Rothman told Bligh, arguing that the fact that the bill cleared its first of three required readings in the Knesset on Tuesday morning means it has “broad backing” in its current formulation.

It is customary and expected for bills to be changed, often substantially, during the committee preparation process between their first reading and their second and third readings, which are often done as a pair of back-to-back votes.

In fact, some coalition members from Prime Minister Benjamin Netanyahu’s Likud party have taken to the airwaves to say that the bill will likely be augmented, and the premier had previously ordered Rothman to soften the bill, specifically to make it clearly not applicable to city, rather than national, officials.

According to its current text, the bill would completely block judicial review or discussion of the “reasonableness” of decisions and appointments made by the cabinet, individual ministers and “other elected officials, as set by law.”

Rothman has said that as constructed, the bill does not shield municipal elected officials from judicial scrutiny, because they have not been “set by law.” In line with this, he does not see a reason to change the bill’s essence, or to remove the “other elected officials” clause.

MK Simcha Rotman, head of the Constitution, Law and Justice Committee, left, and legal adviser to the committee Gur Bligh at a committee meeting at the Knesset in Jerusalem, February 28, 2023. (Yonatan Sindel/Flash90)

Limon said that, even with municipal officials excluded, the bill will provide immunity to most of the country’s most powerful elected officials.

“It is precisely the apparent softening that emphasizes that the exemption from the duty of reasonableness is granted to a small group of people, and precisely to those who wield the greatest governmental power and the widest influence on the public,” he said.

Reasonableness, Limon added, is one of the “guarantors that gatekeepers won’t make decisions out of political interests” and one of the pillars of gatekeepers’ independence.

“Without reasonableness, each gatekeeper knows that his next decision can be his last,” because they could be fired by the government or a minister without fear of needing to explain the reasonableness of that decision to the court.

Attorney General Gali Baharav-Miara arrives to attend the weekly cabinet meeting at the Prime Minister’s Office in Jerusalem, July 9, 2023. (Gil Cohen-Magen/Pool Photo via AP)

One of the public sector’s most prominent gatekeepers, Attorney General Gali Baharav-Miara, came under Rothman’s specific attack during the Wednesday morning discussion.

Limon commented that part of the attorney general’s role is “to represent the broad public interest,” at which point Rothman interjected: “I don’t know such a role,” saying that he did not know where it was set in law.

Shouts broke out from the opposition, and National Unity party MK Orit Farkash-Hacohen said that it is “shameful that [Rothman] is the chairman of the Constitution Committee.”

Speaking to Rothman, she said: “Maybe to you, the elected officials are everything — both policeman and judge. Your worldview is fascist and corrupt.”

MK Orit Farkash Hacohen votes during the Arrangements Committee meeting at the Knesset in Jerusalem, January 13, 2020 (Hadas Parush/Flash90)

In a separate incident, Limon read an inflammatory Facebook post against Baharav-Miara written by Public Diplomacy Minister Galit Distel Atbaryan, to which Likud MK Tally Gotliv, one of the few coalition MKs attending the committee, responded: “Every word is right.”

Distel Atbaryan wrote the post on Wednesday, accusing Baharav Miara of “conducting clinical trials” on the Israeli public. Earlier this week, the minister tweeted that the attorney general “shows an alarming detachment from reality,” “encourages chaos and anarchy,” and “endangers human life.”

Rothman, Gotliv, and Distel Atbaryan’s comments followed a fiery Sunday cabinet session in which ministers excoriated Baharav Miara over what they said was selective enforcement against anti-judicial overhaul protesters.

Wednesday’s hearing is the committee’s second, after the Knesset advanced the bill past its first reading early Tuesday.

Later that day, Finance Ministry legal adviser Asi Messing warned the committee that canceling oversight over the reasonableness of ministers’ decisions could turn all senior appointments in the ministry into positions of trust, as well as harm professional considerations.

Specifically, Messing said that reasonableness is one of the main bulwarks against inappropriate political interference in the ministry’s professional work, including making economic forecasts.

“This is a fatal blow to the independent judgment of each senior officeholder,” he said.

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