AG asks court to strike down law canceling reasonableness test

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

Attorney General Gali Baharav-Miara is calling for the High Court of Justice to strike down the government’s “reasonableness” law, a step that would result in the first-ever court rejection of legislation amending one of Israel’s quasi-constitutional Basic Laws.

In her response to the petitions against the legislation, the attorney general declined to defend the law and wrote that it revokes, for the first time in the country’s history, the authority of the High Court to provide legal redress to an individual or the general public.

“The amendment locks the gates of the court to every person and group who might be harmed if the government or one of its ministers should act toward them in an extremely unreasonable manner,” the Attorney General’s Office states in publishing the response.

“The public is therefore being denied an important means for defending itself from arbitrary exercise of power by the government which is not for the public good.”

The response argues that the law harms the separation of powers, the rule of law, and the rights of the individual, and therefore “does mortal damage to the foundations of the democratic system of government,” and should be annulled.

The legislation prohibits the High Court from reversing governmental and ministerial decisions and actions on the basis of them being unreasonable. Unreasonableness can mean that not all relevant considerations were taken into account, that the considerations used to make the decision were not given the appropriate weight, or that inappropriate considerations were used when making the decision.

This is the second time Baharav-Miara has broken with the government she ostensibly represents, after she similarly asked the court to strike down a Basic Law that prevents the court from ordering a prime minister to recuse himself from office.

Note: An earlier version of this post incorrectly called Baharav-Miara’s move unprecedented.

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