Rothman says ‘reasonableness’ bill won’t apply to city hall, but leaves door open

The Knesset’s Constitution, Law, and Justice Committee plans to advance “this week” a bill to limit judicial review of the reasonableness of elected officials’ decisions, the head of the panel said Monday, paving the way for a Knesset vote as early as next Monday.

MK Simcha Rothman said the bill would only shield decisions made by “the government and cabinet,” in line with a directive from Prime Minister Benjamin Netanyahu. Despite the measure’s current language, which includes “other elected officials as set by law,” it will not automatically apply to decisions made by mayors and other local officials.

The reasonableness bill constitutes a major plank of the governing coalition’s plan to overhaul the judiciary and put manacles on the court after years of it deeming government decisions unconstitutional or out of line with norms for governing. Amid massive pushback, the government signaled willingness to pare back the scope of the measure to only apply to politicians on the national level.

But speaking to reporters after the Constitution Committee wrapped its fourth discussion on the controversial bill Monday, Rothman said that the bill’s text would not be amended to explicitly close the door to adding additional elected officials to its scope.

“I don’t see a reason to” remove the ambiguous section, he said. The Constitution Committee convenes again to discuss the proposal on Tuesday.

The bill has been slammed by the Attorney General’s Office as opening a “black hole” in transparency and oversight, as it would  block courts from reviewing, and even discussing, the “reasonableness” of decisions or appointments made by the cabinet, premier, ministers, and, perhaps, other elected officials.

Deputy Attorney General Gil Limon (center) speaks at a meeting of the Knesset Constitution, Law and Justice Committee on January 16, 2023. (Dani Shem-Tov/Knesset)

A Jerusalem deputy mayor told the committee that if the bill were to ultimately be extended to town council decisions, it would immediately “hurt the average citizen.”

“It will hurt the person whose driver’s license was taken away, the person [who wants to petition against the town] wanting to build something over the park where he takes his son,” said Yossi Havilio.

Opposition lawmaker Gilad Kariv warned that local-level bureaucratic decisions in which scrutiny was not welcome would simply be kicked upstairs to those with immunity from judicial oversight.

The bill threatens “great harm to public service because a list of decisions that should happen in civil service will be pulled to the ministerial level,” he said.

The decisions of non-elected officials would still be subject to a review of their reasonableness, according to the bill.

The committee’s legal adviser said that the reasonableness test is used relatively sparingly, an average of 2.5 times a year to void decisions made by elected officials.

Rothman said that even the decisions of stupid and incompetent politicians should not be subject to court scrutiny.

“What can we do, that’s democracy,” he said.

Opposition committee members criticized Rothman for holding the Monday discussion even as the Israel Defense Forces launched a major anti-terror operation in the West Bank city of Jenin.

“Stop this race. This isn’t the appropriate day to hold the discussion,” said Yesh Atid lawmaker Karine Elharrar. “What’s so urgent?”

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

Likud MK Tally Gotliv noted that a large protest against the overhaul was still planned for Ben-Gurion airport later in the day, saying that it should be postponed. It got off to a chaotic start hours later.

Opposition Leader Yair Lapid said the ball was in the coalition’s court.

“What should have happened today is for the government to stop the legislation. Then there would be room to end the demonstration at Ben Gurion. This is what the protest organizers said, too,” he said at the outset of his Yesh Atid party’s Knesset faction meeting..

“Protesters have a full right to demonstrate in a democratic country. As long as we are a democratic country,” he added.

Rothman accused opposition members of using the Jenin raid, dubbed Operation Bayit Vegan, as an excuse to delay the bill, which needs to move quickly to be enacted before the end of the Knesset’s summer session.

“Trying to use this as a filibuster is excessive,” Rothman said.

The committee chair, one of the champions of the coalition’s sweeping plan to loosen judicial checks on political power, said that he continued to push the bill because he believes it is needed.

“I join all those who regret the legislation. I wish we had a court that shouldn’t be restricted because it uses unreasonableness only when it’s extreme, but that’s not the case,” he said.

Yesh Atid lawmaker Ran Ben Barak charged that the coalition’s enthusiasm for the law is born out of practical need, rather than purist ideology.

“Each time there’s an event that the government doesn’t succeed in overcoming, it changes the law,” said Ben Barak, pointing to the coalition’s desire to reinstate Shas leader Aryeh Deri to the cabinet and several coalition members’ stated desire to fire the attorney general.

Both of these potential actions are currently blocked by the court’s reasonableness test.