Law Committee holds last session before reasonableness bill reservations

The Knesset Constitution, Law, and Justice Committee began the last session on the judicial reasonableness standard bill before the submission of reservations on Sunday morning.

The Knesset Constitution, Law and Justice Committee held the last session on the judicial reasonableness standard bill before the submission of reservations on Sunday morning. After the discussion, a new version of the bill’s text was distributed to the committee members, who will be able to submit reservations until Monday morning.

Committee Chairman Simcha Rothman (Religious Zionist Party) asked opposition members not to submit reservations designed to serve as filibusters. The reservation amendments will be voted on by the committee, and if rejected, they will be added to the bill during final reading votes at the Knesset.

The “reasonableness standard” is a common law doctrine in which the court can strike down government administrative decisions if it deems them extremely beyond what a reasonable and responsible authority would decide. The bill would restrict the use of the standard against decisions made by the government, prime ministers, and ministers.

Labor MK Gilad Kariv attacked the proceedings, as well as Rothman’s decision to begin the session with opening remarks. Kariv said the decision was typical of the hurried and bullish manner of the legislative process.

Outline for judicial reform 

Kariv said that further sentiment of the pro-reform camp was made evident by calls of Likud activist Itzik Zarka for the genocide of Ashkenazi Jews. The Labor member said that he couldn't take seriously calls for love and brotherhood by the coalition when there were so many hateful statements from the coalition.

The opposition also called for more experts to be heard in the hearings, especially Defense Ministry legal advisers who could detail the impact of the bill on Israel’s national security.

One expert who spoke to the panel on Sunday was Prof. Yuval Elbashan, who said that there was consensus about reasonableness that needed to be considered.

Elbashan, who had previously drafted an outline for judicial reform with former justice minister Prof. Daniel Friedmann, said that in his eyes, the law was missing critical elements. He said that the previous government needed protection from the reasonableness standard, and that there needed to be differences between the restriction on full government decisions and those of individual ministers. In his opinion, only full government decisions should be immune from reasonableness.

A glaring issue to Elbashan was that without reasonableness, there was no requirement for politicians to act reasonably in their conduct. He said that this should be made a requirement even if the standard was eliminated, though he understood concerns about judicial activism based on that requirement. This could mean that politicians might need to show the logic behind their work, and that they had weighed various considerations.

“In my eyes, the requirement for reasonable behavior is needed,” said Elbashan.

Elbashan said that reasonableness should be moved into the hands of the Knesset, perhaps with an opposition-led committee. He said that transferring this power check to the Knesset would empower the relatively weak legislative branch. This would include the reasonableness of ministerial appointments, which he said should be made reasonable under law. Rothman noted that he had said he had considered putting the reins of reasonableness in the hands of the Knesset at Thursday’s session. The opposition challenged him as to when it would be added to the text if he was interested in it, since they were nearing a vote on the bill.

Deputy Attorney-General Dr. Gil Limon criticized the changes made to the bill’s text after the first reading, saying that they only exacerbated the problems in the initial version.

The text released before the Sunday update focused on granting immunity from judicial review and the requirement for reasonable administration to ministers, who hold most of the government’s power. He also said the bill clarifies that it also applies to appointments and dismissals.

Kariv submitted a research document regarding checks and resources on appointments in other states that he had requested from the Knesset Research and Information Center. A great many states reviewed had an approval system or judicial review. Rothman said that the document wasn’t relevant to the discussions at hand, but said that he would be interested in having parliamentary appointment approvals like in other states advanced in a separate bill.

Limon said the bill presented “a complete prevention of judicial review of a decision’s reasonableness, and breaks the rules of the game accepted in democracy as part of the checks and balances between the three authorities.”

Yesh Atid MK Yoav Segalovitz expressed concerns that the passing of the bill would affect Israel’s national security.

“One of the main ways that IDF soldiers are defended from international legal arenas is complementarity,” said Segalovitz. Under complementarity, local courts have priority over international legal forums if they are considered independent and fair.

Segalovitz said that IDF soldiers also relied on the idea that government officials were issuing orders under a requirement for reasonableness guiding the directives. He said that they hadn’t heard about costs to the security apparatus during the sessions.

National Unity MK Orit Farkash-Hacohen said that the permissibility of corruption was the most concerning issue. She presented a scenario in which the Shas Party diverted sections of the budget to supporters under the guise of food donations, but that without guidance under the reasonableness standard, there would be no means to ensure that it actually reached the needy.

Further Law Committee sessions are scheduled every day until Wednesday, and mass protests are set to be held on Tuesday in response to the advancement of the bill. Walla reported that a rare Sunday Knesset session was scheduled for the final votes at the plenum.