MKs to vote on bill barring judges from reviewing ‘reasonableness’ of gov’t decisions
1st of 3 Knesset floor votes due Monday evening, advancing bill to protect elected officials from judicial scrutiny; mass protests planned for Tuesday by anti-overhaul activists
Carrie Keller-Lynn is a former political and legal correspondent for The Times of Israel
The Knesset was set to vote Monday on a controversial bill to curtail judicial review of the “reasonableness” of elected officials’ decisions, as part of the government’s broader plan to overhaul Israel’s judiciary.
The bill is being rushed through the legislative process in order to be finalized into law by the close of the Knesset’s summer session on July 30. Monday’s vote is its first of three required floor votes.
With the parliamentary coalition expected to easily clear the bill through its first reading, the protest movement of the past six months has promised nationwide disruptive demonstrations on Tuesday, including blocking roads and flooding Ben Gurion Airport and its internal access roads with protesters.
The bill’s brief text completely bars courts from using the reasonableness test to invalidate or even discuss decisions made by the cabinet, ministers, and “other elected officials, as set by law.”
While Prime Minister Benjamin Netanyahu ordered his justice minister and the head of the Knesset committee sponsoring the bill to “soften” the language so as not to shield local city halls from petitions for judicial review, the bill’s language has not so far been changed.
MK Simcha Rothman, who heads the Knesset’s Constitution, Law and Justice Committee, said that the current bill will not apply to mayors, but declined to remove the “other elected officials” clause, smoothing the way to easily expand the bill’s scope.
Rothman was also criticized for rushing the discussion process, approving the bill for its first reading after only five committee discussions held over nine days.
Parliamentary opposition members and experts invited to the committee also cried foul that the coalition was advancing the bill as a committee bill, rather than a government-sponsored bill, an unusual choice for an amendment to one of Israel’s quasi-constitutional Basic Laws.
As an update to Basic Law: The Judiciary, the bill normally would be sponsored through the Justice Ministry. However, that route would take more time and would open the bill to the attorney general’s scrutiny.
Should the bill clear its first reading on Monday as expected, Rothman was due to convene the committee on Tuesday to begin preparations for the second and third (and final) readings.
Reasonableness is a judicial test that allows courts to strike down government and administrative decisions seen as having not taken into account all the relevant considerations of a particular issue, or having not given the correct weight to those considerations — even if they do not violate any particular law or contradict other administrative rulings.
Proponents of limiting the courts’ use of the reasonableness doctrine say that it has enabled rule by judiciary. Critics say the test is a vital bulwark against government abuse.
Different proposals for limiting reasonableness have been floated by legal scholars and politicians, with the coalition’s current bill the most extreme mainstream curtailment of the doctrine to date.
Limitations on the test proposed by conservative Supreme Court Justice Noam Sohlberg have been oft-cited by the coalition, but its current proposal goes much further than Sohlberg’s argument to wall off areas of policy from judicial scrutiny. President Isaac Herzog also proposed curtailing the application of reasonableness as part of a comprehensive judicial reform package, but not as a standalone measure.
The coalition has claimed that the opposition was close to reaching agreements on limiting reasonableness as part of the sides’ now-frozen talks, but the opposition says it never made any agreements and would not give piecemeal consent to judicial changes.
Rothman relied in part on prior work by legal scholar Yoav Dotan to sell the Constitution Committee’s reasonableness bill. However, Dotan testified to the committee to say that his scholarship had been hijacked to promote a bill far more sweeping than he supports, in remarks last week made shortly before the committee approved the bill for its first reading.
Dotan 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.
Instead, he suggested limiting the test to bar its use for 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.
The Hebrew University of Jerusalem professor further cautioned 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.
The Attorney General’s Office also criticized the bill, saying that it opened the door to “arbitrary” decision-making.
“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,” Deputy Attorney General for Administrative Law Gil Limon told the committee two weeks ago.
While the focus of government effort and protester ire, the reasonableness bill is seen as only a precursor to a broader effort to weaken judicial checks on political power.
A far more polarizing issue in dispute is whether politicians should have influence over judicial appointments. In the Knesset’s winter session, the coalition plans to bring a bill to increase political say over appointing judges, in line with its argument that elected representatives should choose a more ideologically diverse court, while the opposition and protesters decry the move as eroding judicial independence.
On Wednesday, the Knesset is set to vote to finish staffing the Judicial Selection Committee, although Justice Minister Yariv Levin has hinted that he does not plan to convene the panel in its current makeup, which splits power among politicians and professional representatives.
Jeremy Sharon contributed to this report
