Bill to erase judicial ‘reasonableness’ test for politicians passes 1st reading
Beset by protesters, and firmly encouraged by Netanyahu, coalition advances legislation that bars courts from reviewing reasonableness of elected officials’ decisions
Carrie Keller-Lynn is a former political and legal correspondent for The Times of Israel
With protests bearing down on them inside and outside the Knesset’s walls, lawmakers early on Tuesday passed the first reading of a controversial bill to block judicial review over the “reasonableness” of politicians’ decisions.
The vote marked the first approval of a judicial overhaul bill since Prime Minister Benjamin Netanyahu suspended the far-reaching overhaul legislative package in late March.
The bill passed by a vote of 64 to 56 after a long, stormy session at the Knesset in Jerusalem that began on Monday evening and wrapped up after midnight.
After the legislation passed along party lines, opposition lawmakers chanted “shame” as coalition members celebrated the victory.
The legislation needs to pass two more readings in order to become law, and the coalition aims to complete that process before the Knesset breaks for the summer at the end of the month.
Shortly before debate opened for the bill’s first reading, Netanyahu promised in a video message that: “Even after the fix, the rights of the courts and Israeli citizens will not be harmed in any way” and that “the court will continue to inspect the legality of government decisions and appointments.”
Radiating skepticism, opposition leader Yair Lapid accused Netanyahu’s coalition of pushing the reasonableness curtailment bill to pursue corrupt and self-serving aims.
“At least tell the truth,” the Yesh Atid party head said in a fiery speech from the Knesset rostrum. “This is a law that says you can appoint a convicted criminal as a minister,” he charged, in reference to returning serial financial crimes offender and Shas party head Aryeh Deri to cabinet ranks, “that you can fire the attorney general, like you begged to do yesterday,” in a heated cabinet meeting, and “that you can arrange a plea deal for your boss,” meaning bringing a close to Netanyahu’s three criminal cases.
Although billed as a limitation on judicial scrutiny over the “reasonableness” of politicians’ decrees, the bill completely outlaws courts from using the judicial test to invalidate or even discuss decisions made by the cabinet, ministers and other unspecified elected officials.
An amendment to the Basic Law: The Judiciary, the (52-word Hebrew) text reads in full: “Notwithstanding what is stated in this basic law, whoever has judicial authority, according to the law, including the Supreme Court, will not deliberate on, and will not give an order against the government, the prime minister, government ministers, or other elected officials as will be defined in law, regarding the reasonableness of their decisions.”
Supporters say the bill allows elected representatives, rather than unelected judges, to have the final word on policy and appointments. Deri was forced out as a minister in this coalition after the High Court ruled his appointment “unreasonable in the extreme.”
Critics argue that it removes an important check on arbitrary decision-making, and that the reasonableness test ensures the independence of judicial gatekeepers, by protecting them from politically motivated dismissals.
Speaking to the Knesset just before the vote, Justice Minister Yariv Levin said the legislation “doesn’t place the government above the law,” but allows the lawmakers to carry out the policies for which it won public support.
“The situation in which three judges put what is reasonable to them, their political positions, against what the people determined, undermines the basis of democratic governance,” Levin said.
“You won’t stop the legislation and you won’t cancel the will of the people,” Levin told opposition lawmakers as they heckled him from their seats.
Previewing a swarm of anti-overhaul protests planned across Israel on Tuesday against moving the bill forward, a number of protesters gained access to the Knesset and tried to block lawmaker access into the plenum.
The Knesset Guard twice physically removed the protesters, dragging some across the floor and sending one to the hospital, according to Channel 12.
Some of the protesters attempted to glue themselves to the floor outside the Knesset plenum, Channel 13 reported.
Knesset Speaker Amir Ohana praised the guards for preventing “a gang of law-breakers from blocking the Knesset plenum.”
The Knesset spokesperson said that the protesters were granted Knesset access through invitations issued by two Yesh Atid lawmakers’ offices, and said that MKs Merav Cohen and Naor Shiri would be referred to the Knesset’s Ethics Committee “given the seriousness of the unprecedented event.”
Outside the parliamentary complex, more demonstrators against the judicial overhaul gathered at the Knesset gates.
Within the building, several Yesh Atid lawmakers were tossed out of the plenum for disruptiveness, within minutes of the debate opening. Other party lawmakers sported t-shirts featuring a large Israeli flag, which has been adopted by both anti-overhaul and pro-reform camps as a symbol of their struggle.
Introducing the bill to the Knesset floor, MK Simcha Rothman, who heads the committee that sponsored the bill, said that “anyone who is fine with the court interfering with prime ministerial decisions… should look at how it’s been used.”
As an amendment to a quasi-constitutional basic law, the bill normally would be sponsored by the Justice Ministry. However, facing a tight, internally set deadline to advance the bill by the end of the Knesset’s summer session on July 30, Rothman’s Constitution, Law, and Justice Committee sponsored the bill and swiftly prepared it for its first reading, within only nine days.
The Constitution Committee is set to resume its work on Tuesday, in anticipation of the bill’s second and third (final) readings. The coalition is currently planning to bring the bill for finalization the week of July 24, according to sources close to Rothman.
The coalition is facing pressure to soften the bill’s language, and is currently considering possibilities to do so, although no plan has been set.
Particular concerns include losing oversight over administrative decisions taken by caretaker governments ahead of national elections, and making municipalities immune from legal petitions.
Hours after pressing Netanyahu’s coalition to renew frozen negotiations towards reaching a consensus reform, opposition party head MK Benny Gantz told the plenum that the reasonableness curtailment bill is a gateway to removing other judicial checks on political power.
“The significance of the law that you are seeking to advance here today is the beginning of a dangerous process of removing restrictions from the government and erasing judicial review,” the National Unity party leader said. “This snowball that is starting to roll here today will grow, gain momentum and crush the entire country, if we do not stop it now.”
Without courts being able to hold the reasonableness test against elected officials’ decisions, Gantz said, election law, the attorney general’s independence, and the appointment of competent officials are in danger, among other examples.
He renewed his call to Netanyahu to halt the legislation and return to judicial compromise negotiations, previously hosted by President Isaac Herzog, before Gantz and Lapid pulled out from them last month over fears that the coalition would not staff the judicial appointments authority.
Lapid, who also said earlier Monday that it would be possible to return to talks, provided the coalition freezes all of its judicial overhaul bills before the reasonableness curtailment clears its final reading, took a much harder line during the floor debate.
Attacking the coalition for focusing its energy on judicial overhaul, rather than voters’ top-of-mind issues, like cost of living and security, he shouted at lawmakers: “Who do you work for?”
“How is this connected to Israeli citizens making a living? How is it connected to Israeli citizens’ security?” he asked. “You promised to help the weak, and to protect Israel’s security… you are doing nothing but this craziness.”
Lapid added that should the reasonableness legislation pass into law following its second and third readings, he hopes that the High Court of Justice will strike it down.
“And if not, your government will be felled by voters, because they see you don’t work for them,” he said.
Since compromise talks collapsed in June, the coalition has focused its legislative efforts on passing the reasonableness bill before the summer session’s close, but the legislation is only a precursor to deeper judicial changes.
A more central piece of Levin’s legislative package is a bill to remake the system for judicial appointments, by transferring them into political control. A bill to that effect passed its first reading in February, and was set to be enacted in late March. However, Netanyahu then fired his Defense Minister, Yoav Gallant, who had warned that the national divide over the legislation was harming Israel’s security interests, huge national protests erupted, and the prime minister suspended the legislation and later reinstated Gallant.
Netanyahu has said he plans to advance the judicial selection legislation in the Knesset’s winter session, which opens in October.
