The showdown in Israel continues as judicial reform advances

Israel’s Supreme Court is either under attack or undergoing necessary reform, depending on who you ask.

While there is talk of shelving the larger judicial reform package originally proposed by the government, a bill seeking to annul the court’s “reasonableness” criteria for overturning legislation passed its first Knesset reading last week and is expected to pass its second reading this week.

It will likely pass its third reading next week, after which it will become law and the Supreme Court will no longer be able to judge Knesset legislation, appointments, or other government decisions on subjective grounds of “reasonableness.”

The reasonableness doctrine holds a distinctive place within Israel’s legal framework. Specifically, it is a component of administrative law that governs the circumstances under which courts can intervene in administrative or bureaucratic decision-making processes. The doctrine was introduced by Justice Aharon Barak during his initial years as a Supreme Court justice nearly 45 years ago.

Avi Bell, professor of law at Bar Ilan University and the University of San Diego, told JNS the court’s current ability to strike down Knesset laws “is not anchored in law, but was fabricated by the court, under rules that the court has never fully articulated and that have clearly changed from time to time.”

The court “certainly considers itself authorised (by itself) to strike down any law it wishes to cancel, including, of course, a law that would limit the ‘reasonableness powers’ the court created for itself during the 1980s and 1990s,” he said.

The court has used several “open-ended excuses” for striking down laws, “such as improper motivation, improper discussion in Knesset, and a vague combination of rights,” he added. “The court could use any of those excuses or a new one,” he added.

According to Bell, “With the high court and official legal establishment acting in open contempt of the elected legislature and executive, and in open rebellion against any attempt to return legal limits to their power, Israel is already in a constitutional crisis. One can only hope they will come to their senses.”

Over the past 45 years since the significant political shift known as the “mahapach,” or upheaval, following former Prime Minister Menachem Begin’s election victory in 1977, the Likud Party and its allies have remained the leading political force in Israel. During this time, a significant number of laws have ultimately been invalidated by the Supreme Court for not meeting the court’s standard of “reasonableness.”

The government and its proponents view the court as a vestige of a previous era, characterised today by the dominance of a leftist elite. Now, with its 64 mandates and the support of at least half of the five million voters who cast their ballots in Israel’s national elections last November, the government wants to change this paradigm.

The Kohelet Policy Forum, an Israeli conservative think-tank that has played a significant role in the reforms, slammed the court in a February publication titled, “Why judicial reform is essential,” noting “the Supreme Court has invented new legal grounds to review the reasonableness of government actions and even to disqualify government appointments.”

Kohelet explained that the power to void decisions due to their subjective reasonableness “creates unpredictable and inconsistent standards, depending on the position of the legal entity. The result is a legal system devoid of foreseeable rules, in which decisions are taken according to judges’ or legal advisers’ personal positions.”

Kohelet also emphasised that contrary to popular belief, the annulment of the reasonableness criteria as proposed by the bill “will not prevent judicial review or lead to a violation of human rights. Most of the main review grounds in administrative law will remain… Repealing reasonableness grounds will demand of the court that it review decisions based on sound legal grounds, and not on the judges’ opposing worldviews or preferences, and will leave value decisions to the elected officials.”

But opponents of the reform believe that restricting the reasonableness doctrine will bring Israel closer to the brink of constitutional chaos. They believe the reforms will weaken Israel’s democratic nature, the court and ultimately, the State of Israel.

According to Moran Kandelshtein from the Center for Democratic Values and Institutions at the Israel Democracy Institute, the proposed amendments will strengthen the power of the government and weaken the power of the gatekeepers while undermining the principle of checks and balances.

She told JNS that if the amendment is passed, “The court will not be able to disqualify inappropriate appointments (for example, ministers with a criminal record), to annul decisions regarding the removal of gatekeepers (for example, the attorney general), nor will it be able to interfere in the decisions of caretaker governments to act contrary to the duty of restraint imposed by a court ruling.”

At the same time, she told JNS, “The [court has] refrained from determining whether, if such an amendment were to pass, it would be able to disqualify it. That is, [court] separated the question of the limits of the constituent authority of the Knesset from the question of the court’s ability to enforce it.”

The main argument against the proposed amendment, according to Kandelshtein, “is that it severely violates the principles of checks and balances and the rule of law, which are basic characteristics of a democratic state.”

Therefore, she said, “The question is whether this amendment will be perceived as severe enough by the court to annul it, in a precedent manner. It must be assumed that if other parts of the reform are promoted immediately afterwards, the court may examine the amendment from a broad perspective, given the ‘cumulative effect’ that all the amendments have on the system of checks and balances in Israel.”

Agreeing with Kandelshtein, Ori Aharonson, a senior lecturer at Bar Ilan University’s faculty of law department, told JNS, “There is no broad agreement or principled discussion of what would be the proper arrangement when it comes to reasonableness.”

The concern, he said, “is more about the context and the broader project beyond this specific piece of legislation,” and if the reasonableness amendment passes, “this will be a signal to the coalition that this is possible and they can keep going.”

But Professor Bell discounted these concerns, focusing instead on the court’s “excessive judicial activism” and the “reasonableness” doctrine itself.

“Other countries in the world have doctrines with similar names, but dissimilar substance,” he told JNS. For instance, he pointed to the United Kingdom, which employs a “reasonableness” review under a case called Wednesbury, “which the court uses to strike down administrative decisions that are irrational, absurd, or arbitrary.”

Similarly, he said, “U.S. courts strike down arbitrary and capricious decisions.” However, he continued, “These doctrines have nothing to do with the Israeli reasonableness doctrine.”

The application of the reasonableness doctrine outside of bureaucratic decisions, to core political decisions and the actions of elected officials is, according to Bell, “unique in the Western world and makes the Israeli court more powerful and political than any counterpart anywhere in the democratic world.”

The Supreme Court, Bell noted, “has used this invented power to fire ministers, overturn election results, second-guess military strategy and tactics, raise taxes and take any number of other steps that would be unthinkable in other democratic states.”

Worse yet, he said, “Reasonableness review has led the attorney general and legal advisers (whom the Barak court turned into legal supervisors with powers limited only by the court itself) to arbitrarily block appointments, budgets, regulations and military operations, and even to fabricate meritless criminal charges.”

In Bell’s opinion, there is no need for reasonableness review at all.

“Israel would be fine with the kind of administrative law review employed by the rest of the world and the democratic limitations on power that characterised Israeli law before Barak’s revolution,” he said.

The proposed legislation is “extremely modest,” he added.

“It leaves reasonableness review intact, except where used to second-guess the decision-making of elected officials,” he said. “Israel’s High Court would still be the most powerful administrative law court in the Western world.”

Contrary to the claims of the attorney general and legal advisers, he argued, “the powers of Israel’s government would remain limited—both according to law and because it is accountable to the electorate—after the passage of legislation reforming the judicially created reasonableness doctrine.”

Shimon Nataf, the legal adviser to Knesset Constitution, Law and Justice Committee chairman Simcha Rothman, told JNS, “The main problem with this unique and unprecedented new ‘reasonableness’ doctrine is that it does not have the usual legal framework that has a right or wrong answer. It is so vague that judges can reach any decision they want, without the need to legally explain their decision.”

Like Bell, Nataf also sought to calm fears that the new law would handicap the court. “After the law passes,” he said, “the court will continue to have wide authority to review administrative decisions, using the classic review tools. This will bring back balance to an unbalanced court, and enable the public to manifest policy, within the boundaries of the law, as is the norm in all known Western legal systems.”

As The Wall Street Journal had editorialised, Bell noted, “The debate about judicial reform is between pro-reformers’ scepticism regarding excessive judicial activism, that they consider dangerous to democracy, and the anti-reformers’ fear that, as the Journal puts it, reform tilts the balance ‘too far toward British-style parliamentary supremacy,’ endangering court-protected rights.”

It is evident, said Bell, “that judicial reform’s only direct effect on Israeli democracy will be to restore the parliamentary democracy that has been eroded by a decades-long extralegal judicial power grab. The fear that reform will harm democracy appears to come from a combination of prejudice and paranoia, leading anti-reformers to claim that the current government will use the authority it has under democratic rule to adopt theocracy or autocracy.”

Reasonable people can differ about the abilities and incentives of the court to enhance the protection of rights in a democracy, said Bell. “What is certain is that a court that is excessively involved in policy making and that takes an active part in politics, like Israel’s current hyperactive court, cannot possibly serve as a credible or effective defender of rights.”

In a recent interview, Israeli Prime Minister Benjamin Netanyahu also sought to clarify misconceptions about the reforms. He explained that while Israel had managed to balance the executive, legislative and judiciary branches of government during its first 50 years, the balance was “gradually overtaken and basically broken by the most activist judicial court on the planet.”

“Gradually, over the last two-three decades, the court abrogated for itself the powers of the parliament and the executive,” he said. “So, we are trying to bring it back into line with what is common in all parliamentary democracies and in the United States. We want checks and balances, not unrivalled power.”

Netanyahu added that there was a lot of misinformation being spread about the judicial reform effort.

“We are trying to bring Israeli democracy to where it was in its first 50 years. And it was a stellar democracy. It still is. Israel is a democracy and will remain a vibrant democracy, and believe me, the fact that people are arguing and demonstrating in the streets and protesting is the best proof of that. And that’s how it will remain.”