Coalition agrees to limit scope of bill reining in judicial review of government

The key architects of the government’s judicial overhaul plan agreed Sunday to promote legislation that would limit judicial review to bar testing the “reasonableness” of decisions with regard to national government actions only, and not those of local authorities.

Justice Minister Yariv Levin and the chair of the Knesset’s Constitution, Law and Justice Committee Simcha Rothman — the two main architects of the overhaul — came to an agreement to narrow the bill from its original broad coverage, which would have prevented using the “reasonableness” test against any decision by an elected official.

According to a variety of similar Hebrew media reports — generally indicating a coordinated leak — Levin did not want to limit the scope of the bill, but gave in to demands from Prime Minister Benjamin Netanyahu to “soften” its language. Coalition sources confirmed to The Times of Israel on Sunday evening that the government planned to advance the narrower version of the legislation.

Levin vowed on Friday that he had no intention of giving up on his efforts to pass the judicial overhaul in full, telling supporters gathered outside his home that it “depends on our cohesion and determination, both in the public and in the Knesset.”

The altered legislation is expected to be debated during the next meeting of the Constitution, Law and Justice Committee this week, and to be prepared for its first readings in the Knesset as early as next week. The bill is the first piece of the overhaul that the coalition is bringing up for a vote after it returned to its legislative push last month, following months of ultimately failed negotiations, during which the bills were frozen.

The coalition has vowed to pass the bill barring the use of the “reasonableness” test by the end of the current Knesset session, which wraps up at the end of July.

The change in the language is unlikely to appease its critics, who believe the courts should retain such a tool, in particular when ruling on governmental appointments — as the High Court did against Shas party chief Aryeh Deri earlier this year, ruling that his appointment as a minister was “unreasonable in the extreme,” due to his multiple past convictions and the impression he gave the court last year that he was quitting politics as part of a plea deal.

The opposition Yesh Atid party tweeted Sunday that “the only softening is in the backbone of the weak and blackmailed prime minister who gave in again to the insane Levin gang.” The party accused the government of moving ahead with the legislation “unilaterally, and continuing to crush the economy and security while fragmentizing Israeli society.”

Last week, the Attorney General’s Office slammed the bill as a “very extreme measure” that “seriously harms basic democratic values.”

Gil Limon, deputy attorney general for administrative affairs, presented the top legal authority’s opposition at the Constitution, Law, and Justice Committee last Monday.

Limon said that “reasonableness” is the primary public sector tool to provide transparency and accountability for government decision-making, and without it, “arbitrary decisions” can be “inoculated” against scrutiny.

“What stands before us is a green light to the government, the prime minister, ministers, and other elected officials — and to them, only — to make arbitrary decisions that ignore relevant facts, necessary considerations, or give extremely exaggerated weight to the importance of negligible considerations,” Limon charged.

“It is our opinion that this bill, if passed, will void an important protection that guarantees that the government will act fairly and without arbitrariness toward individuals. It will seriously damage basic democratic values, like proper managerial behavior, the purity of the morals of public service, the rule of law, and public trust,” he added.

Former Supreme Court chief justice Aharon Barak — a vocal critic of the judicial overhaul — said last month that he could consider supporting limitations on the use of the “reasonableness” test by the courts.

“We must not compromise on central things, but on non-central issues, we need to sit and talk at the President’s Residence and find a way out,” said Barak, who is often credited with — or accused of — initiating a judicial revolution in the 1990s that increased judicial review over government policy and legislation.

Barak said he would be willing to accept restrictions on the use of reasonableness over government policy and ministerial decisions — provided, he indicated, that the rest of the overhaul legislation was scrapped.

Carrie Keller-Lynn and Michael Bachner contributed to this report.