Knesset committee to advance ‘reasonableness’ bill, limiting judicial review

Religious Zionism MK Simcha Rothman, chairman of the Knesset Constitution, Law and Justice committee, will move forward with a proposed bill on Sunday morning to bar the use of “reasonableness” as part of the government’s judicial overhaul plans, a move that would severely limit judicial review of government decisions.

According to the text of the bill — presented as an amendment to the existing Basic Law: The Judiciary — the courts, including the High Court of Justice, would no longer be able to even hold hearings over the reasonableness of a decision, or invalidate decisions made by the prime minister, the cabinet, ministers, or other elected officials merely based on their reasonableness.

The court will still be permitted to use the reasonableness yardstick for decisions made by unelected officials.

According to Channel 12 news, the government is set to move forward with a bill to completely cancel the use of the test of reasonableness in the case of decisions made by elected officials, rather than a version of the legislation that would amend its use.

According to the report, Justice Minister Yariv Levin and his supporters are not satisfied just with the advancement of the reasonableness bill, and still want to pass legislation to assert political control over judge selection, as well as for the appointment of private legal advisers to ministries in the coming weeks.

Prime Minister Benjamin Netanyahu was said not to have decided whether to push those two pieces of legislation through the Knesset, or to wait for the parliament’s next session.

Rothman and Levin — the key architects of the government’s contentious judicial overhaul plan — have argued that use of the reasonableness test, which allows the courts to judge whether the considerations behind a government or ministerial decision were assigned the proper weight, gives the High Court far too wide a scope to intervene in decisions that should be the purview of the government and elected officials.

MK Simcha Rothman at the Knesset in Jerusalem on May 29, 2023 (Yonatan Sindel/Flash90)

If passed before the Knesset goes on summer recess at the end of next month — as the coalition hopes — the legislation would mean that there would be no judicial review of the appointments of elected officials.

The High Court ruled in January that Shas leader Aryeh Deri’s appointment as a cabinet minister was “unreasonable in the extreme” due to his previous criminal convictions and a commitment to quit the Knesset as part of a plea bargain, and ordered Netanyahu to fire him.

In another recent decision, the High Court ruled, based on previous decisions, that Defense Minister Yoav Gallant’s decision to ban West Bank Palestinians from participating in a joint memorial day event inside Israel was “unreasonable” and ordered him to issue entry permits for the participants.

During negotiations between the coalition and the opposition over the past two and-a-half months, compromises regarding the use of reasonableness and the standing of legal advisers reportedly did come under discussion, and the opposition was said to have indicated its willingness to make concessions on some aspects of those reforms.

However, with negotiations frozen, the opposition has made clear that it will not accept unilateral moves by the hardline coalition to pass overhaul legislation.

National Unity party head Benny Gantz said at a protest on Saturday evening, the 25th week of such demonstrations, that “I am convinced it is not reasonableness they want, but tyranny. We will not allow that tyranny under any circumstances.”

National Unity party leader Benny Gantz speaks at the Eli Hurvitz Conference on Economy and Society, hosted in Jerusalem by Israel Democracy Institute, May 31, 2023. (Yonatan Sindel/Flash90)

Gantz and Opposition Leader Yair Lapid have denied coming to final agreements with the coalition on curtailing the reasonableness test, despite weeks of coalition claims that their parties were aligned in principle to cut the practice.

During overhaul compromise negotiations, the opposition is believed to have tacitly agreed to reduce the court’s ability to use the reasonableness test when reviewing government policy and decisions by elected officials.

This would alleviate some of the frustration felt among the parties of the current coalition over what they see as overbearing High Court intervention through the use of the reasonableness tool.

The opposition did not agree to stopping the court’s use of reasonableness for political appointments, such as that of Deri. Conceding on that issue, however, would cause Netanyahu and the coalition political problems due to Deri’s central position in the coalition as head of the Shas party.

Former Supreme Court president Aharon Barak, who is often accredited with — or accused of — initiating a judicial revolution in the 1990s that increased judicial review over government policy and legislation, said last week that he would be willing to accept restrictions on the use of reasonableness over government policy and ministerial decisions — provided, he indicated, that the rest of the overhaul legislation was scrapped.

But Barak also rejected banning the use of reasonableness for reviewing ministerial and political appointments.