AG office slams 'escalation'; Rothman: It's a clarification

‘Reasonableness’ bill hardened, further shielding coalition from judicial oversight

Bill that bars judicial review of any cabinet and ministerial decisions now also says courts can’t use reasonableness to force justice minister to convene judge-selection panel

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

Prime Minister Benjamin Netanyahu speaks with Minister of Justice Yariv Levin during a Knesset plenum hearing, July 10, 2023. (Yonatan Sindel/Flash90)
Prime Minister Benjamin Netanyahu speaks with Minister of Justice Yariv Levin during a Knesset plenum hearing, July 10, 2023. (Yonatan Sindel/Flash90)

A new version of the coalition’s controversial bill to block judicial scrutiny over the “reasonableness” of politicians’ decisions was released Wednesday evening, and despite reports that Prime Minister Benjamin Netanyahu has pushed to moderate the legislation, the draft further entrenches that protection for the cabinet and its ministers.

The original bill draft, approved by the Knesset in its first reading on Tuesday, barred courts from invalidating or even discussing government and ministers’ decisions based on their “reasonableness,” an established judicial test.

The new text, which came from the parliamentary committee preparing the legislation for its final floor votes, explicitly states that the court cannot touch decisions dealing with appointments or the decision to refrain from exercising an authority, such as not convening committees.

Critics of the bill — the latest push in the coalition’s plan to curb judicial checks on its own power — have said that the coalition is pushing to eliminate the reasonableness test in order to serve specific political goals.

Three of these goals — returning a coalition party head to the cabinet after the High Court of Justice nixed their appointment as “unreasonable in the extreme,” possibly making good on ministerial threats to fire the attorney general, and enabling the justice minister to not convene the Judicial Selection Committee until the coalition until changes are made to its composition — would be specifically protected by the bill’s amended language.

In order to meet the coalition’s self-imposed deadline to finalize the reasonableness block before the July 30 end of the parliamentary summer session, the Knesset’s Constitution, Law, and Justice Committee convened on Thursday at noon, and will meet on Sunday through Wednesday next week, in hopes of approving the bill for its final floor votes the week of July 23.

Demonstrators lift national flags as they rally in front of the Knesset in Jerusalem, on July 11, 2023 (Menahem KAHANA / AFP)

A short, tersely worded amendment to Basic Law: The Judiciary, the bill’s new, full text (in Hebrew) reads:

“Notwithstanding what is stated in this Basic Law, whoever has judicial authority according to law, including the Supreme Court in its seating as the High Court of Justice, will not discuss the reasonableness of a decision of the government, of the prime minister or of another minister, and will not issue an order on the aforementioned matter.”

Added is the sentence: “In this section: ‘decision’ — any decision including in matters of appointments or a decision to refrain from exercising any authority.”

Shortly after the text was amended, Constitution, Law and Justice Committee chair MK Simcha Rothman told the panel that the new wording “does not open up additional fronts.”

Rothman said the change was “to make it clear that the issue is not up for debate and also that a decision to refrain from exercising authority — where there is a decision to abstain” is also not open to judicial scrutiny.

“The issue of appointments is at the heart of governmental authority. The power to appoint or not to appoint or dismiss officers and directors general are the ABCs of the civil service,” he said.

During the discussion later in the day, Justice Ministry senior legal adviser Avital Sternberg told the committee that the Attorney General’s Office viewed the bill’s new version as an “escalation” of the originally proposed legislation, not the “softening” critics had demanded.

“This change underlines the fact that the bill will apply to those who hold the most leadership power — the government, the prime minister and ministers,” she said.

She added, however, that “according to our understanding, this is merely a clarification of the original bill… that this isn’t a proposal aimed at only shielding from judicial review decisions on the government’s broad policies, but also specific, practicable decisions.”

MK Simcha Rothman walks to the Knesset rostrum, on the way to address the parliamentary plenum, July 10, 2023. (Yonatan Sindel/Flash90)

Rothman intervened at one point to ask what was meant by “softening,” arguing that it wasn’t a defined legal term.

Pulled from the bill was a short, controversial clause that had stated that “other elected officials, as set by law,” could also enjoy the shield against judicial review over their decisions.

Opposition members had asked Rothman to pull that clause from the bill, over fears that it could be used to eliminate the reasonableness test for municipal officials in addition to national ones.

The committee’s legal adviser confirmed that separate legislation would, in any case, have had to be passed to specify that city halls are also protected from scrutiny, meaning that deleting the clause will make little practical difference.

Netanyahu was reported on Wednesday to have looked for a way to soften the “reasonableness” bill — which has been slammed by a deputy attorney general as “extreme” and posing “very serious harm” to oversight over the government — without emptying it of its meaning.

Channel 12 reported that Netanyahu consulted Strategic Affairs Minister Ron Dermer along with a close associate, the lawyer Michael Ravillo, to look for ways to moderate the bill.

Strategic Affairs Minister Ron Dermer arrives for the weekly cabinet meeting at Prime Minister’s Office in Jerusalem on January 29, 2023. (Yonatan Sindel/Flash90)

Among the possible pathways, the channel reported, would be to let the High Court of Justice exercise review over decisions not protected by law and to require that reasonableness be accompanied by an additional judicial test when disqualifying a decision.

The latest bill draft goes in the opposite direction, however, outlawing judicial review over all cabinet and minister decisions, and guaranteeing that the court cannot interpret appointments or decisions to refrain from using authority as exempt from the bill, by specifically delineating them as covered.

Though the Knesset on Wednesday chose a lawmaker representative for the Judicial Selection Committee – the second of two that it needed to choose — Justice Minister Yariv Levin has hinted that he does not plan to convene the panel in its current form, which splits power between professional and political voices.

On Thursday morning, Rothman told Army Radio that “the High Court of Justice is prevented from forcing [Levin] to convene the committee.”

Opposition Leader Yair Lapid on Wednesday sent Levin and Netanyahu a letter, alleging that the law requires that the justice minister must convene the panel.

The reasonableness test, according to Deputy Attorney General Gil Limon, is one of the judicial tools used to compel officials to use their authorities.

Netanyahu has announced the coalition’s intention to remake the Judicial Selection Committee during the Knesset’s winter session, which opens in October. Asserting political influence over the appointment of judges is one of Levin’s central goals for the coalition’s judicial overhaul effort.

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