The doctrine defines unreasonable action as a situation in which the administrative authority fails to give proper weight to all relevant considerations, and does not properly balance between all situations according to their weight.
Justice Minister Yari Levin argues that the reform is “long overdue”. He said that it was aimed at “strengthening democracy, rehabilitating governance, restoring faith in the judicial system, and rebalancing the three branches of government”.
The three branches of Israeli parliamentary democracy are the legislative (the Knesset) the executive (the government), and the judicial. Levin has argued that the reform would “restore the decision-making capability of the elected government,” and return power to elected branches of governance (the legislative and executive).
Former Supreme Court justice Moshe Landau has also supported the reforms. He argued that the reasonableness principle allows elected officials to be subverted by appointed judges – an undemocratic process. The formulation of the principle is subjective, which allows an activist court to set the terms of governance.
Those on the political left have opposed the bill. They argue that reasonableness is rarely used, except in extreme cases in which there is no other recourse to protect impacted citizens, who cannot wait until the next election for the issue to be resolved. To avoid human rights abuses, they argue that the doctrine of reasonableness must remain intact.
Opposition leader Yair Lapid has described the reform as a "unilateral revolution against the system of government in Israel," and urged his supporters to protest the bill. Former Justice Minister Gideon Sa’ar said he was concerned about "the damage that could be done to the rights and freedoms of citizens of Israel if the plan to demolish the judiciary goes ahead as planned".
Human rights are not the only concern. Opponents of the reform have expressed concerns over government corruption. The reasonableness doctrine allows the judiciary to overrule government decisions which, although not illegal, may benefit them.
This follows accusations that curtailing judicial power is aimed at influencing legal proceedings, centrally Netanyahu’s ongoing corruption trial. Levin has denied this, saying that the trial “is not related to any specific case”. It is an “essential reform” which “should have been carried out long ago”.
A survey published by the Israel Democracy Institute in January found that most Israelis (55.6 per cent) support the Supreme Court’s ability to strike down laws passed by the Knesset if they contradict democratic principles. The Israeli Voice Index, published in February by the Israel Democracy Institute, showed that 43 per cent of Israelis think the reforms proposed by Levin are bad or very bad. In contrast, only 31 per cent think they are quite good or very good.
The Reasonableness Standard Bill is part of a larger programme of reforms outlined by the Justice Minister in an address on 4th January. His planned “long overdue” reforms also include preventing the High Court from deliberating Israel’s basic laws – which have quasi-constitutional status but can currently be amended or annulled by a simple majority.
Anti-judicial overhaul demonstrators protest against the Israeli government's judicial overhaul, at the Ben Gurion international airport near Tel Aviv, July 11, 2023. (Photo by Avshalom Sassoni/Flash90)
He also plans to change the process of judicial selection in order to give “equal representation to all three branches of government”. His proposed changes would add two “public representatives,” to be chosen by the Justice Minister, to the selection committee. This would give the government a majority of 5 to 4.
Since January, protests have been escalating across Israel in response to the proposed reforms. Hundreds of thousands have protested weekly, concentrated in Tel Aviv, Jerusalem, and Haifa.
Protest leaders have said that their action will increase as the bill progresses through the Knesset. Histadrut Chairman Arnon Bar-David has also said he is considering calling a general strike. “When I feel that things have gone too far, we will use our strength,” he told union leaders in Tel Aviv.
The Law and Justice committee will be reconvened today to prepare the bill ahead of its second and third readings. The coalition intends to pass the bill before the end of the summer session on July 29, but Prime Minister Netanyahu has reportedly expressed concerns that security tensions could postpone the bill’s approval until the winter session.
