Israeli law students are reporting for JURIST on law-related developments in and affecting Israel. This dispatch is from Mayan Lawent, a law student in the Buchmann Faculty of Law at Tel Aviv University and a JURIST Staff Correspondent in Israel.
Last Thursday, July 11, the Israeli Knesset voted for curtailing the application of the so-called “reasonableness doctrine” to decisions made by the executive and “elected officials” by a thin 64-56 majority. This decision came as part of the attempted judicial reform that the current coalition government has been trying to pass. It sparked mass protests in January, due to fears that the proposed bills will limit judicial oversight of government decisions and weaken judicial independence. The results of the July 11 vote led to protesting and heavy criticism, as many people feel that Israel is at risk of losing its democracy. As former Attorney General Avichai Mandelblit said, “[Israel is at the] brink of dictatorship if the overhaul passes.”
The rather small, 52-word amendment passed by the Knesset states: “Notwithstanding what is stated in this basic law, whoever has judicial authority, according to the law, including the Supreme Court, will not deliberate on, and will not give an order against the government, the prime minister, government ministers, or other elected officials as will be defined in law, regarding the reasonableness of their decisions.”
The reasonableness doctrine is found in Israeli administrative law and allows the court to exercise its power of judicial review on the executive branch of the government. If an action is not considered reasonable, i.e., if it is deemed arbitrary or not properly considered, then the court can nullify the decision made by the government.
This doctrine is a famous import from the British legal system, where it was originally known as the “Rule of Reason”. It was grandfathered into Israeli jurisprudence in 1948, along with much of the British Mandatory law that had been in place up until then.
Over time, Israeli courts have continuously developed and refined the reasonableness doctrine through case law, legal scholarship, and comparative legal analysis. This doctrine has been applied across various areas of Israeli law, such as tort law, administrative law, and contract law to assess the reasonableness of actions, decisions, and behavior.
Advocates of the reasonableness doctrine argue that it is crucial for addressing extreme cases of arbitrary government actions and preventing rights abuses. It also serves as a check on the centralized power of the Israeli government. Critics of removing this doctrine warn that it could lead to an unaccountable government and increased corruption. Additionally, limiting its application to elected officials may shield civil servants and allow for unfair decision-making, or possibly result in the dismissal of judges not informed by executive political preferences.
Critics of the reasonableness doctrine argue that the current standard for judicial intervention is too broad, too subjective, and undermines elected officials. Furthermore, they claim it allows the Supreme Court to subvert government authority and undermine the rule of law, skewing the separation of powers in favour of the judiciary. Basically, the idea is that it would be better to have elected officials wield power, rather than having unelected judges do so.
To pass a bill in Israeli law, it must pass three readings. The July 11th vote was the first of three. Usually, the time between readings is used to address concerns about a bill and make necessary edits. In this case, no major concessions were made by the government, further inflaming tensions in the country. The second vote was slated to occur on July 17th, but members of the opposition have filed a staggering 27,676 reservations against the bill in order to stall it – due to this, the voting session has been extended another day and results are expected on Wednesday the 19th. Unfortunately, based on the coalition’s current stance it seems unlikely any major changes will be made to edit the bill.
Opposition to the judicial overhaul has been intense. Since the major protests in January, there have been smaller weekly protests throughout the country. Though the current legislation has sparked mass protests again: planned “disruption days” that have hundreds of thousands hitting the streets in protest, protests at the Ben-Gurion Airport, and protests outside government buildings country-wide. In addition, many military reservists have threatened to refuse to serve – a highly controversial step that speaks to how important this issue is to the Israeli people.
On a personal note, the past few months have been very bittersweet. On the one hand, the unceasing protests make me proud to be part of a society that has worked actively to defend liberal democracy and minority rights. On the other hand, these mass demonstrations are a sign of how divided my country is. The fact is that close to half of the citizens are either apathetic to, or in support of the judicial overhaul, of which the reasonableness bill is only a small part. Whether the reasonableness doctrine bill is repealed or not will be clear in a few weeks, the struggle will not be over, and we have a lot more work and tumultuous times ahead of us.
