Not very reasonable: Leaving Israel for New Zealand over the reasonableness clause - opinion

The response of Israel’s Medical Association to the reasonableness amendment passed by the Knesset exemplifies the troubling groupthink and mindless repetition of false labeling that pervades public discourse in Israel. After striking over a political issue that divides the country, canceling most medical treatments, including long-awaited surgeries for the most vulnerable, many doctors are reportedly focused on relocating due to their fears of judicial reform in Israel.

One of the preferred countries is New Zealand. This is rich in irony. Every element of Israel’s proposed reform that the Israel Medical Association finds so odious and dictatorial is present in even greater measure in New Zealand.

Israel’s judicial reform bill had two main elements: The first was to diversify the makeup of the Supreme Court by removing the veto power sitting justices had in choosing new members and giving the government a majority on the committee that selects judges; the second was to moderate the revolutionary unilateral power grab made by the Supreme Court in the early 1990s under then-Supreme Court president Aharon Barak to annul Knesset legislation.

Israel has no constitution, and no law gives the court the power to veto Knesset legislation. The judicial reform would have, for the first time, actually provided legislative imprimatur to this Supreme Court power, but would require some supermajority of the justices. This would replace the current situation in which a three-person judicial panel, hand-picked by a Supreme Court president with an activist agenda, annuls legislation.

The campaign against judicial reform has two central mantras, recited with the absolute certainty of the most religious persons: The first is that the reforms will disgust and frighten away all of Israel’s business and investor base in the Western world, with catastrophic economic consequences; the second is that the reforms will turn Israel into a dictatorship. Both are patently false.

Nobody outside of Israel would have had the slightest interest or concern about the makeup of the committee that selects Israel’s judges, or the number of judges required to annul legislation, had it not been pounded into their heads by opponents of the legislation within Israel telling them that they should not only care, but also be mortified.

This past March, I was visited in Tel Aviv by a partner at a major London law firm. The conversation soon turned to what was going on in Israel, and the English lawyer asked about the major controversy. I asked him how many countries’ judicial selection processes he was familiar with, not including England. He thought a bit and responded, “I have to say, only the United States, but now I also know about Israel’s.”

IT IS NOT that opponents of reform are exposing Israel’s dirty secrets. The only dirty matter is the blasphemous way every element of the reform is presented as the end of Israel’s democracy and the heralding of a dictatorship.

Why is the judicial system in New Zealand, like in most Western democracies, worse than Israel's

The vast majority of Western democracies give elected officials a dominant, if not exclusive, role in appointing judges. New Zealand is no exception. Those Israeli doctors seeking a professional haven in New Zealand will be practicing medicine in a country in which every Supreme Court judge is nominated by a politically appointed attorney-general. What of the supposed dictatorial consequences of requiring a supermajority among the judges to strike down legislation?

Doctors lamenting the coming dictatorship in Israel would find that in New Zealand, the courts cannot annul a law passed by parliament under any circumstances. And like Israel, New Zealand does not have a written constitution and has a single legislative house.

Though Israel’s judicial-reform bill would have put her in popular company with Western democracies, the government responded to public concerns. First, it agreed to withdraw the legislation requiring a supermajority in the court to annul a Knesset law. Then, it gave up the idea of controlling the committee that elected judges, proposing instead that the government have the right to appoint the first two Supreme Court judges during a Knesset term.

Remarkably, that too was seen by opponents as the end of democracy and a crushing blow to the economy. For the first time in Israel’s history, there was an organized campaign that acquired legitimacy to encourage Israeli reservists not to report for army service.

The government then announced a temporary freeze and agreed to negotiations at the President’s Residence with members of the Knesset opposition. The goal was to reach a consensus on all issues surrounding the power of the courts that had been a matter of public controversy in Israel for 30 years.

However, after four months of discussion, with no agreement reached on any issue, the government reverted to making a minor amendment to Israel’s Judiciary Law. It did not involve changing how judges are appointed, and left untouched the power seized by the courts to annul Knesset laws. Rather, it sought to make a clarification to the Supreme Court’s authority in the area of administrative law, which examines whether public officials are carrying out their functions in accordance with laws and regulations.

FOR ISRAEL’S first 30 years, Israel’s Judiciary Law was interpreted by the Supreme Court as giving the court authority to disallow an action by a public official if they exceeded their authority, acted in a discriminatory manner or had a conflict of interest.

Later, the court held it could also forbid action by a governmental actor if its duties were executed in a manner deemed disproportionate. Starting with a 1980 case, former chief justice Aharon Barak carved out a doctrine whereby the courts could intervene in an administrative decision even if it was arrived at in a legitimate fashion and there was no finding of impropriety.

Barak determined that the court had authority to examine the substance of the decision itself and annul it if it fell outside the bounds of “reasonableness.” Under Barak’s standard, “reasonableness” meant examining whether the official gave all relevant considerations proper weight.

The reasonableness amendment passed by the Knesset last month provided that a decision by the government, prime minister or government minister cannot be reversed by the court on grounds of the “reasonableness of their decision.” The court retains its authority to examine their actions with all other tools of administrative review – lack of capacity, discrimination, conflict of interest, and disproportionality.

In New Zealand, where, as noted, the courts cannot annul acts of parliament, judicial review of an action by a governmental official is limited to the way a decision is made. The courts in New Zealand cannot make a subjective determination on the merits of an administrative decision.

In England, if a decision is made by a public official that is incompatible with England’s Human Rights Act, it can be overturned by the court. However, even in such an extreme case, the court is without power if the official is following a mandate from parliament.

Israeli courts may be unique and, at the very least, an extreme outlier, in seizing the power to substitute its judgment for the judgment of elected officials on public-policy matters. Legal scholars and politicians across the political spectrum have long expressed discomfort with this expansion of judicial authority. But even this minor amendment is cast as the end of democracy and grounds for refusal of army service.

We need to apply reason to the judicial reform debate and listen to each other’s worries and fears. Supporters of reform should recognize the concerns of those protesting, and certain political parties that favor reform should consider whether some of their actions have earned the suspicions of the law’s opponents. Opponents of the reforms should make their arguments without libeling the country, showing disdain for large parts of its citizenry, and threatening not to serve in the army.

Israel is a great country with wonderful people across the political spectrum, all deserving mutual respect. Recognizing that, and acting upon it, is the key for reaching a worthy compromise.

The writer is an attorney in Israel and New York.