What the 'reasonableness' law does

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

After months of stating its intention, the coalition converted plan to action on Monday, passing the first of a telegraphed package of laws targeted to sap the judiciary of its authority, in particular its ability to serve as a bulwark against political power.

For supporters of the coalition’s judicial shakeup, Monday shattered a glass ceiling on its way to dampening the influence of unelected judicial “gatekeepers.” Critics, including Opposition Leader Yair Lapid, said that the rules of the political game were smashed as well, by using power to begin altering Israel’s democratic foundations.

“This is a complete breaking of the rules of the game,” Lapid said, minutes after the law banning judicial review over the “reasonableness” of cabinet and ministerial decisions passed. “The government and coalition can choose what direction the state goes in, but it can’t decide the character of the state.”

Justice Minister Yariv Levin, who is considered the ideological driver of the coalition’s broad judicial vision, confirmed that Monday’s law was only the “first step in a historic process to correct the judicial system.”

Rather just than a political divide, the parliamentary coalition and opposition’s polarized perspectives on the judicial shakeup mirror a rip in Israel’s broader social fabric, with hundreds of thousands of citizens taking to the streets against the changes, as well as some demonstrations in support of them.

Passed just three days ahead of Tisha B’Av, a fast day memorializing the destruction of two Jewish Temples, at least partly attributed to intra-community hatred, the symbolism could not be greater.

The effects have spilled into the economy and rippled beyond the borders, impacting Israel’s security and relationships with international allies.

After the law passed on Monday, the shekel slumped against the dollar, the Tel Aviv Stock Exchange fell sharply, and major bank analysts and a credit ratings agency issued warnings about their faith in the Israeli economy and rule of law.

On Israel’s northern front, Hezbollah gloated that Israel is on a “path to disappearance,” while the Israel Defense Force chief of staff made a rare public warning about the threat to the country’s existence, and a plea for unity, after trying to chase down Prime Minister Benjamin Netanyahu for days to warn him about harm to military readiness as thousands of reservists said they would no longer contribute to voluntary service in protest against the overhaul.

The White House expressed dismay over the Netanyahu-led coalition’s decision to make a change to the system of governance without broad consensus, following several public calls from US President Joe Biden to slow the legislative process and expressions of concern about Israel’s democratic foundations.

Supporters say that the “reasonableness” law is part of a necessary corrective to judicial overreach that will ultimately strengthen a majoritarian form of democracy, while critics say it opens the door to bad behavior and signals the coming of more significant changes to the judiciary.

“Reasonableness” is a judicial test that is meant to provide oversight over public officials’ decisions by balancing political interests against professional considerations. For example, when evaluating a decision for its reasonableness, the court would examine whether relevant professional opinions were solicited, rather than just political voices, ahead of the decree.

As it is a doctrine created by the court, it does not exist in statute — except by the Knesset blocking part of its usage on Monday. The law entered into effect on Wednesday.

The reasonableness doctrine only applies to administrative decisions, not to laws. This means that courts have used the reasonableness test to evaluate executive orders, cabinet decisions, matters that require ministerial sign-off, and at the other end of the spectrum, decisions made by city halls on planning and zoning.

The new law bans the court from scrutinizing decisions made by the nation’s highest office holders — the cabinet and its individual ministers, though not city officials — for their reasonableness. Other elected officials, and all bureaucrats, are still subject to the test.

The High Court of Justice has used the test sparingly, 44 times in the past decade, and often in conjunction with other legal doctrines, according to the legal adviser to the Knesset committee that sponsored and prepared the bill. On average, the High Court only invalided 2.5 decisions a year in the past decade while citing reasonableness, said Gur Bligh.

But reasonableness has had a wider influence, according to legal scholars and representatives from the Attorney General’s Office who testified before the Constitution, Law, and Justice Committee. First off, the test encourages officials to act reasonably — e.g., solicit professional opinions — before issuing decisions, because they know they would ultimately have to answer to the court.

Additionally, the test is one of the primary oversight mechanisms in the areas of appointments, the decision to not exercise vested authority, and government decisions during election periods, said Deputy Attorney General Gil Limon.

Outlawing scrutiny over the reasonableness of its decisions is only the first step, and perhaps the mildest, in what the government routinely says is a broader plan to redraw power lines between itself and the courts.

The wider vision presented by Levin — which has been cast into some degree of uncertainty amid severe public and international backlash — is to increase political influence over appointing judges to the courts, to statutorily limit those courts’ ability to review types of laws and decisions, and then to create a Knesset override mechanism to reinstate scuttled laws.

Netanyahu and other coalition party heads have said that their next major step will be to change the composition of the panel that appoints judges, so that it no longer balances influence between political and professional representatives.

One of the potential options is a new Judicial Selection Committee that removes Supreme Court and Israel Bar Association representatives, and instead balances the panel between coalition and opposition politicians. While this option is said to be a front-runner, a more extreme option that puts key judicial appointments in sole coalition control passed all legislative steps short of final floor votes before being paused by Netanyahu in March.

On Monday, shortly after the Knesset vote, Netanyahu set November as a deadline for the parliamentary opposition to come to compromises on how to restructure judicial appointments, which would be just one month after the Knesset returns from the lengthy summer recess that starts on July 31.

While judge selection has been the biggest sticking point between coalition and opposition teams during their failed negotiations to reach a consensus reform, a legislative override to court invalidations has drawn the most international ire.

Last month, Netanyahu told US media that the override clause was “out.” But just days later, amid intense pressure from ultra-Orthodox coalition partners who demand override power, Netanyahu was said to reassure his government that the plan has not been shelved.

In addition to further planned laws, coalition members have signaled their desire to use their powers to change the guard among the “gatekeepers” of the rule of law.

Without reasonableness oversight over appointments, it may be easier for the government to fire the attorney general. A separate bill, to transform her deputized ministry legal advisers into political appointments, is also in the works.

On Tuesday, in an interview with Army Radio, Finance Minister Bezalel Smotrich, the leader of the far-right Religious Zionism party, said that it should be “the right of an elected government to appoint an attorney general on its own behalf.”

Attorney General Gali Baharav-Miara has been a frequent coalition target, and many of its ministers called for her firing before the November election that returned them to power. Calls to fire Israel’s top lawyer continue to ring in government halls and during media appearances.

Baharav-Miara was appointed by a right-wing justice minister from the previous big-tent government in February 2022, and is set to serve a six-year term.

Legal scholars and opposition lawmakers have cautioned that the new reasonableness law can pave a path to removing the attorney general from her post, as the reasonableness test is a key oversight for public official firings.

Several opposition parties and good governance watchdogs have already petitioned the High Court to cancel the coalition’s reasonableness law. The Court on Wednesday agreed to hear the petitions, in September. It did not issue an injunction against the law being applied.

The court cannot find the new law “unreasonable” because the reasonableness doctrine only applies to administrative decisions — and not statutes. However, the justices will have other legal theories and measures that could be applicable when they judge the petitions.

Related: A time for reason: Will the High Court strike down government’s reasonableness law?

Former deputy state attorney Yehuda Shaffer said Tuesday that it is unlikely that the court will invalidate the law, itself an amendment to Basic Law: The Judiciary.

Although the High Court has nixed 23 laws or parts of laws for conflicting with quasi-constitutional Basic Laws — themselves a form of stand-in for Israel’s absent constitution — it has never struck down a Basic Law itself.

Should the court set a new precedent by striking down a piece of Basic Law, Shaffer thinks it is most likely to do so on procedural grounds, in line with petition claims that the rushed Constitution Committee process did not solicit all relevant opinions before approving the bill for votes.

A petition from the Movement for Quality Government also alleges that the law undermines the nation’s core values, writing that the law “is unconstitutional because it fundamentally changes the basic structure of Israeli parliamentary democracy and the nature of the regime, while de facto abolishing the judiciary and seriously damaging the delicate fabric of the separation of powers and the system of checks and balances in the State of Israel.”

If the court were to strike down the reasonableness law, a potential constitutional crisis may ensue if the government refuses to heed the High Court’s invalidation.

When asked directly by CNN on Tuesday if the government would heed a potential High Court invalidation, a close confidant of Prime Minister Benjamin Netanyahu, Strategic Affairs Minister Ron Dermer, declined to say that the cabinet would abide by a court decision.

“The government will always obey and abide by the rule of law,” Dermer told the network, but “what we have in Israel is the rule of law; what we don’t have is the rule of judges.”

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