Attorney general asks court to strike down law curtailing oversight of government
Gali Baharav-Miara presents fresh challenge to Netanyahu coalition, urging judges to disqualify amendment to Basic Law voiding reasonableness test for government decisions
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
Attorney General Gali Baharav-Miara called on Sunday for the High Court of Justice to strike down a government law limiting judicial review, an unprecedented step for the court, which has so far balked at revoking amendments to the country’s quasi-constitutional Basic Laws.
In her response to the petitions against the legislation, the attorney general asserted that the ability of the courts to use the “reasonableness” standard to evaluate government and ministerial actions and decisions was a critical component of Israel’s democracy and its system of checks and balances.
Revoking that yardstick undermines that system, severely harming Israel’s identity as a democratic country, a situation that would justify a decision by the court to strike down the law, Baharav-Miara argued.
The attorney general has refused to support the government’s position on the legislation, in itself a controversial step, and the government has obtained independent counsel to argue its case in the High Court.
Her submission to the court on Sunday is the latest in a series of positions she has taken against the coalition, a situation that has generated severe tension between her and the government and calls by several ministers for her to be fired.
The law is the only component of the coalition’s broader judicial overhaul program that has been passed by the Knesset and, like other parts of the radical reform agenda, faced massive and intense opposition from protest groups and opposition parties.
“The amendment locks the gates of the court to every person and group who might be harmed should the government or one of its ministers act toward them in an extremely unreasonable manner,” the attorney general wrote in her submission to the court.
“The public is therefore being denied an important means for defending itself from arbitrary exercise of power by the government that is not for the public good.”
Later Sunday, Justice Minister Yariv Levin harshly criticized the attorney general, but said he did not have plans to fire her — for now.
“It’s very difficult and almost impossible to work like this,” Levin says in an interview with the Kan public broadcaster. “This is not how the attorney general is supposed to act.” Nevertheless, he said, “firing her is very problematic, not simple, and at the moment it’s not on the agenda, but I don’t know what will be tomorrow — every day a new record is broken.”
The attorney general “is supposed to represent the government, defend the government and assist it — and not work against it,” Levin added, saying that “the time has come for the attorney general will have integrity, and I think the public must strongly demand it.”
The High Court has never before struck down a Basic Law, or an amendment to such a law, but has insisted it has the right to review such legislation on several occasions.
In several different rulings, the court has underlined that it may intervene over a law that violates Israel’s Jewish and democratic character, or which constitutes an abuse by the Knesset of its ability to pass and amend the quasi-constitutional Basic Laws.
Baharav-Miara argued in her submission on Sunday that the reasonableness limitation law violates both these principles and should therefore be struck down.
Attorney Ilan Bombach, who is representing the government, accused the attorney general of “taking the most extreme position” on the legislation, and requested that the hearing on the petitions against the law, currently scheduled for September 12, be postponed until October.
The reasonableness limitation law, an amendment to Basic Law: The Judiciary, was approved in Knesset in July and prohibits the High Court from using the reasonableness standard to annul governmental and ministerial decisions and actions on the basis that they are unreasonable.
Such a determination is made if the court believes that not all relevant considerations were taken into account, that the considerations used to make the decision were not given the appropriate weight, or that inappropriate considerations were used when making the decision.
Prime Minister Benjamin Netanyahu, Levin, and other proponents of the law argue it was necessary to prevent the unelected court from imposing its worldview on the will of the government and the majority.
Detractors argue that it removes an important tool in the court’s ability to review government actions that could harm the independence of key law enforcement officials, the legitimacy of elections, and individual rights.
In her lengthy filing, the attorney general argued that the reasonableness standard was “a cornerstone for preserving the rule of law, as it requires the government and its members to give the proper weight in their decisions to the democratic characteristics of the State of Israel.”
“The reasonableness standard protects the independence of senior officials in the civil service, in particular those who perform the functions of gatekeepers, by preventing improper appointments and dismissals; [and] protects the legitimacy of the election process by preventing the use of governmental powers in a way that gives an unfair advantage to those who hold governmental power,” she contended.
She argued that the government’s law limiting the reasonableness yardstick anchors within a Basic Law the ability of the government “to act with extreme unreasonableness” and “exercise absolute discretion” over public policy without effective judicial review.
Baharav-Miara pointed specifically to the importance the reasonableness standard plays in reviewing appointments made by the government of senior law enforcement agency officials, and their dismissal, such as the position of attorney general itself, as well as the state attorney, police commissioner, and others.
She noted out that the tool most often used for judicial review of such decisions was the reasonableness standard, and that removing this tool would undermine the independence of such officials, thereby undermining the rule of law and democratic standards.
The attorney general also highlighted how judicial review of government actions during an election period is heavily reliant on the reasonableness standard, and argued that without it, interim governments could misuse public funds and resources to provide various benefits to the electorate, thereby undermining the concept of fair elections.
Baharav Miara acknowledged that striking down a Basic Law was “complex and sensitive,” but insisted that the government’s legislation violated basic principles at the heart of Israel’s democratic identity of the state such as “the separation of powers; the rule of law; core human rights; free and fair elections,” and so should be struck down.
She added that the law had to be evaluated together with the government’s broader judicial overhaul agenda, as outlined by Levin back in January, which she said sought in general to remove checks and balances to the government by preventing the judicial branch reviewing executive and legislative action.
The attorney general also argued that the law constituted a misuse of constituent power by the current government, since it immediately gives additional power to the current coalition while weakening the court’s ability to exercise judicial review over its actions.
“There is no escaping the (most extraordinary) determination that this is an amendment which deals a mortal blow to basic democratic principles and exceeds the limits of the constituent authority…(that is, an unconstitutional constitutional amendment) and that it was enacted through the misuse of constituent authority… and therefore should be considered null and void,” Baharav-Miara concluded.
