ISRAEL AT WAR - DAY 145

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Deputy AG tells Knesset blocking ‘reasonableness’ test opens a ‘black hole’

AG’s office opposes coalition bill to bar judicial review of ‘reasonableness’ of elected officials’ decisions; deputy Gil Limon warns of ‘serious harm to basic democratic values’

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

Deputy Attorney General Gil Limon attends a Knesset Constitution, Law and Justice Committee hearing, June 25, 2023. (Yonatan Sindel/Flash90)
Deputy Attorney General Gil Limon attends a Knesset Constitution, Law and Justice Committee hearing, June 25, 2023. (Yonatan Sindel/Flash90)

The Attorney General’s Office on Monday slammed the coalition’s plan to completely outlaw judicial review over the “reasonableness” of elected official decisions 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 Knesset Constitution, Law, and Justice Committee on Monday, the second day of its debate over a bill that would block courts from reviewing — or even discussing — the “reasonableness” of decisions by the cabinet, premier, ministers, or other elected officials, or their appointments.

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.

Furthermore, Limon said that blocking courts from holding hearings on the reasonableness of decisions opens “a black hole” that kills transparency and undermines “basic democratic values.”

MK Simcha Rothman, chair of the Constitution, Law and Justice Committee, leads a committee meeting at the Knesset on June 20, 2023. (Oren Ben Hakoon/Flash90)

He tied the bill, which Prime Minister Benjamin Netanyahu’s coalition plans to finalize within the next month, to the coalition’s broader plan to reduce judicial checks on political power, saying that the Attorney General’s Office sees “no place to advance” the measure.

Netanyahu’s coalition reignited its judicial shakeup this week by attacking the reasonableness clause, relying on insights gleaned from negotiations with opposition representatives to calculate that constraining judicial review in this manner would receive the least objection.

However, rather than merely tighten the conditions under which courts could evaluate the reasonableness of a government decision, the coalition presented a broad proposal to completely remove court oversight over a range of decisions made by potentially any elected official.

The court would still be able to use the reasonableness test against non-elected officials and would be able to apply other judicial and statutory tests, where applicable.

Limon told the committee that the reasonableness test only constitutes a “fraction of a percent” of what the court deals with, but plays several key roles in and outside of the courtroom.

Without the test, he said, four key areas would be particularly affected: appointments, election policy, professional decisions, and staffing public authorities.

MK Karine Elharrar speaks at Knesset Constitution, Law and Justice Committee hearing, June 25, 2023. (Yonatan Sindel/Flash90)

In addition to preventing grossly inappropriate appointments, such as a career criminal to head the Israel Police, Limon said, reasonableness is the court’s “central tool on the eve of elections” to ensure that an incumbent government behaves fairly, “and without it, it would be difficult for the court to enforce balance and restraint laws.”

Regarding professional decisions, such as regarding economic policy, the reasonableness standard forces decision-makers to solicit professional opinions, not just political ones.

And, the reasonableness standard has been used to force the government to staff necessary authorities, Limon said, pointing to emergency bodies during the coronavirus pandemic management.

Furthermore, he said that the threat of the reasonableness test encourages better government decisions from the outset.

“You’ll see how much ministers’ decisions would be affected if there were not a reasonableness test,” he warned.

Opposition lawmakers told the committee that they believed that the reasonableness clause was the first step in a longer chain of laws to weaken checks and balances.

“Ripping off the Band-aid” in what Yesh Atid MK Karine Elharrar called the “all at once” Hungarian method of democratic erosion did not work, so now the coalition is attempting the Polish model, “little by little, so they don’t even feel it,” she said.

Protests against the coalition’s broader overhaul plan are in their 25th week, joined by a chorus of academic, judicial, diplomatic, economic and opposition political voices that warn that the coalition’s plan will threaten Israel’s liberal democratic system of governance.

Former Supreme Court president Aharon Barak in a January 7, 2023 TV interview (Channel 13 screenshot)

Cross-spectrum negotiations facilitated by President Isaac Herzog have broken down, without registering any tangible progress. Following its block against using the reasonableness test for elected officials, the coalition plans to retool judicial appointments during the Knesset’s winter session.

Should the negotiations restart, former Supreme Court chief justice Aharon Barak said Sunday that while he supports compromise, “there are things we can’t compromise on,” such as the makeup of the Judicial Selection Committee. “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.”

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, said last week that 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.

In remarks made during a Zoom call with US-based anti-overhaul protest leaders at Harvard University, Barak added that the overhaul proponents “must know that if they continue to talk and talk and not reach agreements, the number of demonstrations won’t go down, it will go up.”

Michael Bachner contributed to this report.

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