Debate over Israel’s judicial reform bill regarding “reasonableness” is reaching fever pitch. Many people have reasons for supporting the reasonableness doctrine, and many people have reasons for opposing it (and thus supporting the newly passed legislation). Our aim here isn’t to address those.
Rather, we need to take a quick look at some basic facts, so that the debate doesn’t start from a very skewed and incorrect perspective.
Israel still has judicial review
First and most importantly, the new law does not cancel judicial review in the Jewish state.
Israel’s Supreme Court, sitting as the High Court of Justice, still has the authority to review and strike down any government decision or legislation that violates the quasi-constitutional Basic Laws, including those pertaining to human rights.
Contrary to popular belief going viral on social media, firebrand nationalist MK Itamar Ben-Gvir isn’t suddenly going to be able to pass a bill evicting Arabs from Israel. Even with the new law now in place, such legislation still could and would be struck down by the Supreme Court for violating the Basic Law: Human Dignity and Liberty.
The Supreme Court’s ability to enforce the law remains intact, and thus its judicial check on legislative power.
This isn’t a change, but a reversal
For its first 37 or more years after independence, Israel did not allow its Supreme Court to exercise a doctrine of “reasonableness.” The Court could only strike down legislation that it could prove had violated Basic Law. This is in line with the US Supreme Court, which can strike down laws of Congress only if it can prove them unconstitutional (ie. illegal).
Somewhere around the mid-1980s to early-1990s in what came to be known as the “Constitutional Revolution,” the Supreme Court assumed the authority to strike down government decisions and legislation that the seven sitting justices deemed “unreasonable,” even if they weren’t illegal.
This authority was not granted by law.
And because it was not granted by law, the reasonableness standard employed until now was entirely undefined, meaning it was effectively based on the interpretations, opinions and whims of the Supreme Court justices.
The opposition previously supported reform
While much of the reform legislation has been sharpened under current Justice Minister Yariv Levin, most of the proposed reforms were also on the agenda of the previous government under now-Opposition leader Yair Lapid.
Lapid’s Minister of Justice was New Hope party leader Gideon Sa’ar, who has since merged with Benny Gantz and sits as no. 2 on his National Camp. While in office last year, Sa’ar advanced a plan to curtail the powers of the Supreme Court and restore balance. In particular, he, like the current government, wanted to strip the Attorney General of certain powers, and proposed televising the selection process for new Supreme Court justices to give the public more insight, if not more say.
Lapid himself is on record harshly criticizing the Supreme Court’s interference in political matters.
In a 2014 speech at the Interdisciplinary Center in Herzliya (IDC), Lapid, who as the time was serving as Minister of Finance under Netanyahu, stated:
“The Supreme Court [and Finance Ministry Budget Committee] has decided that politicians are not suited to govern. My goal is to restore sovereignty to the state. The government must set the agenda. There is no other body authorized to do this. Not if we want to live in a true democracy.”
Lapid went on to note that “yes, there are stupid politicians. There are incompetent politicians. There are politicians who lack a spine and are weak, but what can we do? That’s how democracy works. If the public chose them, they are the ones who were chosen. All other options are a direct attack on the idea of democracy.”
Want an example?
Going back to the topic of “reasonableness,” a recent example of this doctrine being exercised and vigorously opposed by the government was the disqualification of Shas Party leader Aryeh Deri from serving as a cabinet minister.
Deri had previously been convicted on corruption charges, but as the head of an important coalition partner, Prime Minister Benjamin Netanyahu was compelled to grant him a senior ministerial post.
The Supreme Court determined that doing so, while not strictly illegal, was “unreasonable,” and forbade the appointment.
This is an important example because it’s not clear-cut. Many supporters of the new law restricting the Court would at the same time agree that Aryeh Deri’s crimes make him unsuited to govern.
But that’s not the point. The point is whether or not the Supreme Court has the right to make that decision.
The Court without question has the right to enforce the law. But does it also have the right to stop the government from making bad decisions?
In other democracies, the Supreme Court does not have that right. American governments make bad, politically-costly decisions all the time, and are punished at the ballot box. But so long as they don’t violate the Constitution of the United States, the Court has no right to intervene.
Does that same model suit the situation in Israel? Well, that’s a topic for debate. But let’s begin from a fact-based perspective, otherwise we end up engaging in nothing more than destructive sloganeering.
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