Knesset panel advances bill to end ‘reasonableness’ test for politicians’ decisions

Opposition MKs call committee chair Rothman a ‘dictator’ as he pushes through hardline version of judiciary-weakening bill after 5 discussions in 9 days, ignores expert criticism

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

MK Simcha Rothman leads a Knesset Constitution, Law, and Justice Committee discussion, June 25, 2023 (Yonatan Sindel/Flash90)
MK Simcha Rothman leads a Knesset Constitution, Law, and Justice Committee discussion, June 25, 2023 (Yonatan Sindel/Flash90)

A controversial bill to shield elected officials from judicial scrutiny over the “reasonableness” of their decisions could come for its first of three Knesset floor votes as early as this coming Monday, after the parliamentary committee preparing the bill approved it for the plenum on Tuesday.

The Knesset’s Constitution, Law, and Justice Committee readied the bill after only five discussions, held over the past nine days, and despite criticism from experts and the opposition.

A several-minute-long screaming match preceded the vote, surrounding the committee chair’s refusal to let the deputy attorney general speak, with opposition lawmakers yelling, “It’s an illegal vote” and “This is how a dictator behaves.” Committee chair MK Simcha Rothman finally permitted Gil Limon to make his remarks — though only following the vote — after the Knesset’s legal adviser insisted on it.

As part of the raucous debate preceding the vote, several opposition lawmakers were intermittently booted from the committee.

The latest step in the coalition’s planned overhaul of the judiciary, the bill would completely block judicial review or discussion of the “reasonableness” of decisions and appointments made by the cabinet, individual ministers and “other elected officials, as set by law.”

Rothman said on Monday that the bill will only currently apply to the government and ministers, although he said he did not plan to pull the “other elected officials” clause, keeping a door open to a future broadening of its scope. Prime Minister Benjamin Netanyahu had earlier this week ordered Rothman and Justice Minister Yariv Levin — the coalition’s two judicial shakeup champions — to remove mayors from the bill’s protection.

Finance Minister Bezalel Smotrich, who heads Rothman’s far-right Religious Zionism party, told the committee after the vote that the bill “strengthens democracy,” and he slammed anti-judicial overhaul protesters against it as “privileged.”

Finance Minister Bezalel Smotrich attends a conference in Jerusalem on May 30, 2023. (Yonatan Sindel/Flash90)

Smotrich told the committee that the protest movement “isn’t a fight for democracy,” but rather “the privileged group is fighting to protect its privilege.”

On Monday, thousands of anti-overhaul protesters shut down road traffic within Ben Gurion Airport for hours, with hundreds protesting inside the main terminal. Smotrich said that such protests are attended by figures on the “fringe,” and despite 52 arrests, said that the police were engaging in “selective enforcement.”

“The left is allowed to block roads and the right is prohibited,” he claimed, comparing the protests with right-wing protests against the withdrawal of civilian population from the Gaza Strip in 2005, known as the Disengagement Plan, during which thousands were arrested for blocking roads.

In his comments to the committee, Limon said that blocking review over the reasonableness of politician decisions “will cause severe damage to a very wide range of areas led by the government. We don’t see it today, but we will see it [in the future] and it will be quick.”

The proposal, Limon continued, would erode the independence of judicial gatekeepers and make their continued tenures “depend at every moment upon the grace of the political echelon and on fulfillment of their wishes.”

Opposition party heads Yair Lapid and Benny Gantz, who have been actively supporting the anti-overhaul protest movement, said in a joint statement that eliminating the reasonableness test opens the door for “corruption,” arguing that “this law is not meant to protect the citizens, but to protect the politicians.”

The two called for Netanyahu to block the bill’s floor vote and to return to compromise talks over the overhaul brokered by President Isaac Herzog, which were launched several months ago after unprecedented public protests forced Netanyahu to announce a stop to his hardline government’s attempt to push the overhaul through unilaterally.

Despite breaking off the talks last month over alleged coalition malfeasance, the Yesh Atid and National Unity party leaders said Tuesday that it was still “possible to reach agreements, it is possible to make changes in the judicial system for the good of Israeli citizens and not for the tyranny of the majority and corrupt appointments.”

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

Without the reasonableness test, opposition members have claimed, the government would be able to fire the attorney general and other gatekeepers with whom its members clash.

Legal scholar Yoav Dotan told the committee on Tuesday that if the proposal is finalized, a broad swath of public sector decisions could be shielded from judicial scrutiny because “everything will turn into a minister’s decision.”

“The easiest thing in the world would be to create practical ways to convert everything into a ministerial decision,” he said.

In addition, many decisions — such as approving visas — are already practically made by bureaucrats, but legally require the minister’s signature.

Edwin A. Goodman Professor for Public Law and former Dean at the Faculty of Law at the Hebrew University of Jerusalem. (Courtesy Hebrew University of Jerusalem)

Rothman had previously cited Dotan’s criticism of the reasonableness test as an argument for why it should be eliminated, but the Hebrew University professor told the committee that its current proposal was “very problematic” and that it would be “very dangerous to throw the baby out with the bathwater” by canceling the test entirely.

Dotan suggested limiting the test to bar its use to review general decisions made by the full cabinet, but said the reasonableness test was an important check against decisions made by individual ministers.

“There is no reason in the world to give them immunity from full scrutiny by the High Court,” Dotan said.

Coalition MKs and an academic who supports their stance, however, supported the bill as closing down judicially-created doctrines in favor of legislated tests.

“When does the reasonableness test come into play? When I’ve expended the checklist of legislative tests,” said Aviad Baskhi, head of the Kohelet Policy Forum’s legal scholarship and part of the coalition’s delegation to the now-frozen talks to find a reform compromise with the opposition.

Bakshi said that current law provided alternatives to protect human rights, such as considering the “proportionality” of allegedly discriminatory decisions, rather than their reasonableness.

Bakshi was echoed by Likud MK Ariel Kallner, who told the committee: “I want there to be rule of law, and if any judge can rule based on caprice, it’s not the rule of law.”

Dr. Aviad Bakshi, head of the Kohelet Policy Forum’s legal department, speaks during a Constitution, Law and Justice Committee meeting in the Knesset in Jerusalem, July 4, 2023. (Yonatan Sindel/Flash90)

Opposition politicians attacked Rothman for pushing the bill through quickly in order to meet the coalition’s end-of-the-month deadline, aligned with the end of the Knesset’s summer session.

“You don’t understand this is a Basic Law,” one of Israel’s quasi-constitutional statutes, charged Yesh Atid MK Karine Elharrar. “You’re trying to alter it as if it were a normal law,” she said, adding that the coalition has “so gotten used to” changing Basic Laws it finds inconvenient.

Two of the coalition’s initial actions were to make two Basic Law amendments in order to allow for two ministerial appointments, one of which was struck down by the court, including by branding it “unreasonable in the extreme.”

Former justice minister Meir Sheetrit asked Rothman why the bill was authored by the Constitution, Law and Justice Committee rather than being sponsored by the Justice Ministry, the normal path for such legislation.

Processing the bill through the customary channel would both require Attorney General Gali Baharav-Miara’s input and lengthen its legislative timeline. Sheetrit accused the government of using the committee “to do its dirty work.”

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