The Knesset’s Constitution, Law and Justice Committee will resume legislation connected to the government’s controversial judicial reform on Sunday, after legislation was frozen for nearly three months as negotiations were held between representatives of the entire coalition and the opposition parties Yesh Atid and National Unity at the President’s Residence in Jerusalem.
The committee, led by chairman MK Simcha Rothman (Religious Zionist Party), is scheduled to hold discussions on Sunday, Monday and Tuesday this week. It was initially scheduled to begin discussions on Wednesday, but delayed them due to the killing of four Israeli citizens in a terror attack in Eli the day before.
The discussions will focus on an amendment to the Basic Law: The Judiciary, according to which Israel’s courts will no longer be able to block executive decisions based on their “extreme unreasonableness.”
The “extreme unreasonableness doctrine” is a common-law principle adapted from the British legal system, that allows judicial review of administrative decisions that go beyond the scope of what a “responsible” and “reasonable” authority would undertake. Over the years, Israeli judges developed the doctrine into what is known as “the realm of reasonableness,” according to which the court does not evaluate the executive decisions themselves, but does set boundaries over what counts as being “within the realm of reasonableness.”
Is Israel’s reasonableness standard reasonable?
The government, coalition and some academics have argued that the court should not have the authority to define these boundaries, as it does have an innate ability to determine what is and what is not within the realm of reasonableness.
Opponents of the law claim that in Israel’s judicial system, the doctrine’s importance lies in that it gives the court the ability to review potentially corrupt decisions or appointments that do not explicitly violate conflict-of-interest agreements or other legal restrictions.
MK Simcha Rothman, Head of the Constitution, Law and Justice Committee seen during a meeting at the Knesset in Jerusalem on June 20, 2023 (credit: OREN BEN HAKOON/FLASH90)For example, the Supreme Court used the “extreme unreasonableness doctrine” in January as an impetus to strike down the appointment of Shas chairman MK Arye Deri as a minister, due to his multiple criminal convictions and his attempts in 2022 to gain a favorable plea bargain by misleading the court into believing that he would quit politics for good. A redefinition of the “reasonableness factor” may bar the Supreme Court from intervening if Netanyahu decides to reappoint him. The bill’s supporters argue that this is a welcome development since the court did not have the authority to strike down Deri’s appointment to being with, while its opponents argue that blocking Deri’s appointment proved the doctrine’s importance.
Israeli opposition vows to delay bill
Opposition MKs and protest groups said they would ramp up opposition in order to delay the bill.
Labor MK and Constitution Committee member Gilad Kariv said that along with the rest of the opposition MKs, he would conduct a “determined parliamentary battle” in the committee, that will “give a boost to the protests across the country.
Thousands of protestors gathered in dozens of spots throughout the country on Saturday evening for the 25th straight week. The central protest in Tel Aviv included a march from Dizengoff Square to Kaplan Street. The protestors circulated a flyer that claimed that the legislation was geared towards “legitimizing and enabling the appointment of criminals, cronies, and family members lacking all necessary skills.”
Prime Minister Benjamin Netanyahu first announced on Sunday that he would proceed with the judicial reforms in a ‘responsible and measured’ manner. The announcement came after opposition leaders MK Yair Lapid (Yesh Atid) and Benny Gantz (National Unity) said on June 14 that they would not resume the talks at the President’s Residence until Israel’s Judicial Selection Committee forms. Gantz and Lapid’s decision came after Netanyahu attempted to delay the Knesset’s vote that day for its two representatives on the committee. The attempt failed, as opposition MK Karine Elharrar (Yesh Atid) was elected in the anonymous vote to fill one of the spots, with at least four votes from coalition MKs.
Coalition members, including Finance Minister Bezalel Smotrich, initially said last week that they would proceed with a bill that would redefine the “extreme reasonableness doctrine” based on a paper written by Supreme Court Justice Noam Sohlberg.
According to Sohlberg, the court may use the doctrine regarding administrative decisions made within specific government ministries, but it cannot apply it to decisions or appointments made by the cabinet as a whole.
However, the current text of the bill implies that the doctrine will face greater restrictions. The bill proposal’s text says, “Whoever has judicial authority, including the Supreme Court, will not hear cases nor hand down a decree against the government, the prime minister, one of its ministers, or any other elected official as will be set in law, regarding the reasonableness of their decision.”
Israel expected to advance bill to weaken Bar Association
Also on Sunday, the government’s Ministerial Committee on Legislation is expected to advance a bill proposal to weaken the Israel Bar Association (IBA) after the association on Tuesday elected as its new chairman a staunch opponent of the government’s judicial reforms. The association also occupies two spots on the Judicial Selection Committee, and the new bill could give the coalition greater control over these spots, without having to alter the makeup of the committee, which in March raised fierce opposition from protestors.
The bill would establish a new council responsible for admitting Israel’s lawyers onto the bar and granting them licenses to practice law, authorities that currently belong to the IBA. The IBA would only remain as a voluntary representative body for lawyers who are interested. Unlike the IBA, which is elected independently by the country’s lawyers, the new council would be politically affiliated, as most of its members would be appointed by the governing coalition.
The decision to bring the bill up in the Sunday ministerial committee came after lawyer Amit Becher, who is a vocal opponent of the government’s judicial reforms, won Tuesday’s election for the Bar Association by a landslide, and also gained a majority in the Bar Association’s national council, with 16 out of 30 seats. The Council is responsible for electing the association’s two representatives on Israel’s Judicial Selection Committee. The two representatives are thus likely to side with anti-reform members of the committee, and not with Justice Minister Yariv Levin.
The bill actually includes a clause that would entirely remove IBA representatives from the Judicial Selection Committee and from other committees responsible for electing judges for religious courts. However, the bill’s sponsor, Likud MK Hanoch Milvetsky, wrote a letter requesting from the ministerial committee that this clause be removed, so as not to irk the opposition and protest movements.
According to the coalition, the bill also would not apply immediately, so it does not appear as if it came directly as a result of the government’s preferred candidate, Effi Nave, losing the election. The coalition did not say when it would apply.
Bills that are sponsored by private MKs (as opposed to the government or one of the Knesset’s committees) are brought before the Ministerial Committee on Legislation in order for the government to express its opinion. Bills with government support usually stand a higher chance of passing into law.
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