The judicial reform is a wholesale uprooting of the judiciary's power - opinion

Reading about the hearing at the High Court of Justice on the amendment to the Basic Law: The Judiciary, which revokes the power of the courts to examine the reasonableness of actions performed by the executive branch of our government, leads me to conclude that it is entirely possible that among the judges presiding over this matter, some do not fully comprehend the profoundly negative impact of this amendment on our system of government. It is neither a frivolous nor a mild amendment; it is indeed extreme and will change our government.

Let’s first understand. This specific amendment is not a limitation placed upon the judiciary’s power of review over acts of the executive. It is indeed the uprooting of this power.

The significance of this amendment is that the courts do not have any authority to assess acts of the executive branch. This applies both to decisions taken by the government as a body and to decisions taken by all members of the government. The amendment specifically emphasizes that this prohibition applies to the appointment of civil servants, and cases where a minister fails to use the power granted to him to protect the public interest. 

This amendment, if fully obeyed, will change the nature of Israeli governance and will lead to a deterioration of the civil service in our country. The concept of three branches of government complementing each other crumbles. It destroys one of the main functions of the judiciary – to safeguard the population from the tyranny of the executive branch.  

It appears that a few of the judges looking into this matter are somewhat detached from Israel’s political reality and haven’t fully evaluated the influence of this amendment on the Israeli political world.

Coalitions formed nowadays, and in the past, have often demonstrated that respect for moral and ethical values is pushed aside when what lies ahead relates to political power. The political career of ministers is not decided in view of their actions in serving the public. It relies more on the extent of the support inside their parties. Appointments of civil servants are often made to gain increased support and favor from party members, and not exactly according to personal qualifications.

The amendment, in fact, allows ministers to feel free in appointing civil servants from within their party. Not using the power rendered to ministers in order to serve the public interests could be fatal. I recall very well a case where a transportation minister refused to make obligatory the use of safety belts in vehicles while driving in municipal areas. This was a fatal mistake that did not meet the litmus test of reasonableness and caused the loss of many lives.

Asking the wrong questions

Too many of the court deliberations were devoted by the Supreme Court to the question of whether they have the authority to abolish a basic law. When this question stands alone, it is certainly a question of formality and procedure – because the Knesset can grant any law the title of “basic law.” What really matters is the content of the basic law that is under judicial evaluation, and how it will influence the democratic nature of our country as we understand it.

We cannot adopt the foolish notion that any coalition which has a majority in the Knesset is allowed to enact any law they want, simply because they have a majority. Of course, there are limitations to the legislative power dictated by our need to protect our democratic values and basic human rights. 

The consequences resulting from this amendment are the construction of a fence around governmental and ministerial decisions, placing them above criticism and creating a form of tyranny in our government.Employees in the civil service will not be free to act according to what they believe is in the public interest. Thinking about their future careers, they will have to act in order to please the government.  

One of the Supreme Court judges asked to see specifics about why abolishing the test of reasonableness is harmful to our democracy.

 I do not think that the organizations petitioning the court to cancel the amendment need to provide more specifics of its inevitable harm. The civil service in our country will deteriorate; and the notion that there are other tools for nullifying executive actions is also wrong.

The employment of alternative tools will only extend the friction between the executive and the judiciary leading to an unending battle between the judiciary and the executive.

The test of reasonableness, applied to actions or inactions of the government and its ministers is vital in preserving the democratic nature of our government; and it is required in Israel because of our political system and its infrastructure of shaky morality and ethics.

We should not plant in our democracy the seeds of tyranny; we should not place the executive above criticism; and we should not look for other tools. There is a sound and good tool. It is the test of truly serving the public interest. It is called the test of reasonableness.

The writer is president of the Federation of the Israeli Chambers of Commerce and of the Tel Aviv and Central Israel Chamber of Commerce. He served as a Likud MK between 1984 and 1992, and chaired the Knesset Constitution, Law, and Justice Committee in the 12th Knesset, 1988-1992, during a period when Basic Laws were legislated.