Knesset begins final votes on reasonableness law, curbing court review of decisions

The Knesset on Sunday morning began the process of enacting a law that will end judicial scrutiny over the “reasonableness” of cabinet and ministerial decisions, teeing up the first major legislative win for the parliamentary coalition’s platform to curtail judicial checks on governmental power.

Wielding the full power of its slim Knesset majority, the coalition is expected to push the bill through over strong political and societal objections, and despite growing announcements of key army reservists they will stop showing up for duty, and diplomatic, professional, social, economic and security concerns raised by key Israeli officials and international allies.

Advanced on a rushed timeline that only dedicated nine committee sessions to preparing the core text for a substantive amendment to one of Israel’s quasi-constitutional Basic Laws, the bill is expected to clear extensive filibusters to become law by Monday or Tuesday, in line with the coalition’s goal to show movement on its judicial overhaul program before the Knesset breaks forits summer recess on July 30.

Prime Minister Benjamin Netanyahu underwent surgery early Sunday morning and had a pacemaker successfully implanted, a week after he was hospitalized for dehydration and was fitted with a heart monitoring device. The premier’s office said he was expected to be discharged later on Sunday, in time to join the Knesset action.

Sunday’s plenum debate on the bill ahead of its final readings comes a day after protesters’ “March on Jerusalem” ballooned to tens of thousands of participants as it reached the capital, and joined hundreds of thousands of others protesting in Tel Aviv and throughout the country against the legislation. Meanwhile, every day has seen thousands more reservists join the list of those who say they will no longer show up for duty.

In a tersely worded single paragraph, the bill would amend Basic Law: The Judiciary to completely block courts from evaluating the “reasonableness” of administrative decisions made by the cabinet or its ministers. Reasonableness is a test established by the courts through which they exercise oversight over decisions they consider reckless, unethical, or incompletely considered. Under the current legislation, they would be able to continue to use the test for bureaucrats or city officials, but not holders of higher office.

Supporters of the bill say it is improper for an unelected bench of judges to exercise their judgment over discretionary or policy matters, which are often folded into administrative decisions. Critics say that the broad removal of such scrutiny will reduce the government’s need to go through proper processes when making decisions from the outset. And by removing protection on appointments, it can open the path to ending the independence of democratic gatekeepers.

The measure is billed as a precursor to a more substantive change to the judiciary, with coalition leaders saying the next step is to increase political influence over judicial selection. Coalition leaders are also pushing to give the Knesset a mechanism to override court invalidations of legislation, a controversial power that Netanyahu recently told US media he would not pursue, only to face severe backlash from his ultra-Orthodox political partners.

US President Joe Biden looks at President Isaac Herzog as they meet in the Oval Office of the White House in Washington, July 18, 2023. (Susan Walsh/AP)

US President Joe Biden has come out against the coalition’s ambition to pass a broader judicial overhaul, and has urged Netanyahu to slow the process down and achieve broad consensus before passing meaningful constitutional changes.

Biden took the rare step of sending a message through New York Times columnist Thomas Friedman on Tuesday, telling Friedman that shared democratic values are the basis of Israel and the US’s close bilateral alliance, and that undermining Israel’s democracy may threaten the relationship in an irreparable manner.

The US president’s warning followed a Monday call to Netanyahu in which Biden expressed his concern over the overhaul, and a Tuesday meeting with President Isaac Herzog, who was in Washington to address a joint session of Congress.

Israel lacks a constitution and the stand-in Basic Laws are easily amended. With the government controlling the legislature, the Supreme Court is the main check on the executive’s power in the country.

A number of conservative academics, who otherwise support curtailing the “reasonableness” test’s application to policy matters, say that the bill is too far-reaching a block and removes critical oversight over top politicians.

President of the Supreme Court Esther Hayut (center) and colleagues hold a hearing on petitions demanding they block the return of Shas leader Aryeh Deri as a minister due to his recent conviction and suspended sentence for tax offenses, at the High Court in Jerusalem, January 5, 2023. (Yonatan Sindel/Flash90)

Further critics of the bill, including opposition politicians and leaders of the 29-week-long anti-overhaul protest movement, have said that the coalition is pushing to eliminate the reasonableness test in order to serve narrow political goals.

Feeding this criticism, the coalition amended the bill in mid-July to explicitly state that courts cannot touch decisions dealing with appointments, or decisions to refrain from exercising authority, such as failing to convene committees. Three of the coalition’s political goals would be specifically protected by the bill’s amended language: returning a coalition party head to the cabinet after the High Court of Justice nixed his appointment as “unreasonable in the extreme”; possibly making good on ministerial threats to fire the attorney general; and enabling the justice minister to refuse to convene the Judicial Selection Committee until the coalition makes changes to its composition.

A week of protests preceding Sunday’s debate on the bill have focused on these issues, as part of a larger argument that the bill is part of a suite of planned judicial changes that would undermine gatekeepers’ independence and erode Israel’s liberal democratic institutions.

Hundreds of thousands of Israelis have hit the streets in the past few days, facing rougher treatment from a police force that was instructed to use a heavier hand against demonstrators, nearly seven months into the civil society-led protest.

Saturday also saw a landmark four-day march against the shakeup reach Jerusalem, leading to striking scenes of the protest snaking along the main road leading into the capital. Demonstrators have set up a tent city outside the Knesset, which they say will remain there until further notice.

Largescale protests are planned in the city on Sunday, while a major pro-overhaul demonstration is set to take place in Tel Aviv’s Kaplan Street — the very location that regularly hosts the anti-overhaul crowds.

Tens of thousands of demonstrators march into Jerusalem on July 22, 2023, completing a multi-day march that started in Tel Aviv to protest the government’s judicial overhaul legislation. (Amir Terkel)

Social divisions emanating from the national debate over whether and how to rebalance power among public institutions have spilled over into the IDF, with 10,000 military reservists pulling out of voluntary reserve duty, under the argument that sapping the judiciary of its power will break the social contract between citizens and the state by harming democratic foundations.

Israelis protest against plans by Prime Minister Benjamin Netanyahu’s government to overhaul the judicial system, in Tel Aviv, July 18, 2023. (AP Photo/Ariel Schalit)

A recent director of the Shin Bet security service backed up their protest, saying on Thursday that it was justified to refuse to serve when the government is pursuing what, in his estimation, amounts to a coup.

Dozens of former top security officials — including ex-heads of the Israel Defense Forces, Mossad and Shin Bet — sent a letter to Netanyahu Saturday calling on him to halt the judicial overhaul legislation to allow for renewed talks, while expressing support for the reservists who have threatened to stop volunteering in protest.

The prime minister and other coalition politicians have slammed reservists for refusing voluntary service and said there is no excuse for harming the Israel Defense Forces. Netanyahu last week met with his defense minister and the IDF chief of staff to evaluate military readiness, in light of reservist protests.

Earlier this month, Israel fought a two-day operation against Palestinian terror operatives in the West Bank city of Jenin, and is currently locked in a standoff with the Lebanese terror group Hezbollah on the northern border.

Hezbollah and Iranian leaders have said that they perceive Israel’s national resilience as weakened at the moment, due to internal conflict sparked by the judicial debate.