Reasonableness Standard Law debate – Why is Israel so divided over a single law?

Israeli Prime Minister Benjamin Netanyahu’s government passed the first piece of its judicial reform legislation last Monday. 

The judicial reforms, first unveiled by Justice Minister Yariv Levin in January, have been a point of contention. Protests began the weekend after the judicial reforms were announced. 

From the start, acommon theme of the protests has been a strong anti-Netanyahu component. One of the protest groups, predating the reforms, is called “Crime Minister.” 

Protesters have called Netanyahu “dangerous, corrupt and racist.” 

Netanyahu has been indicted for corruption charges, having been under investigation since 2019. Some in the protest movement see the reforms as his attempt to avoid justice. 

Levin appeared to confirm these suspicions when days after announcing the judicial reforms, he said the indictments against Netanyahu led to an understanding of the need for reform. 

“Three indictments of this type really contributed to a very broad public understanding that there are failures in the system that need to be corrected, but it has nothing to do with them,” Levin told the Knesset. 

Seven months of debates, protests and failed negotiations have not managed to change the basic layout of the struggle. One side believes that the justice system is tilted against them and needs to be corrected through reform. The other side doesn’t trust the current government to make the reforms, believing the reforms are a means to retain political control. 

Israel finds itself in this situation, partially, due to the lack of a constitution. While the idea of a democratic government without a constitution might seem unreasonable by itself, Israel is not the only democratic government without a written code to delineate the powers and responsibilities of the government. 

However, Israel does lack some of the features that other democratic governments possess to ensure balance in the government. 

For example, Israel has a unicameral legislative chamber. Britain also lacks a constitution but has two houses of legislature, which must both agree before a law can be passed. Israel has only one house, therefore, a simple majority is all that is needed to pass legislation. 

Israel also lacks the tripartite structure of the U.S. government, in which the three branches split powers. This feature, referred to as the balance of power, ensures that no part of the government can dominate another. 

The founding fathers of the U.S. system of government deliberately set the three branches against each other to protect the citizens from abuses of power. 

As a nation without those features, Israel’s Supreme Court has long served as the principal check on the power of the legislature. Opponents of the judicial reforms fear that Israel’s legislature will become too powerful, harming the people. 

Israel’s parliamentary system, which is partially modeled after the British government, continued largely unchanged from the nation’s founding until 1992, when the Knesset passed the Human Dignity and Liberty: Basic Law. After that, the Supreme Court, under the leadership of Aharon Barak, started a self-proclaimed “Constitutional Revolution,” in an attempt to create a kind of constitutional system through judicial decisions rather than legislative acts. 

Barak, who served as president of the Supreme Court of Israel from 1995 to 2006, decided that the Supreme Court should take on the role of human rights and civil liberties defender due to the lack of a constitution. 

The court began to declare certain Basic Laws as having constitutional status and used them as the basis for judicial review for other laws. It also began to increasingly use the standard of “extreme unreasonableness” to overturn governmental decisions. According to its critics, one of the most unreasonable aspects of the Supreme Court’s use of the “extreme unreasonableness” standard is that the court accepts petitions from any party, not just a party with legal standing. 

In other democratic countries, such as the United States, a petition to the Supreme Court can only be made by a party directly affected by a particular legislation. That is referred to as standing. However, the Israeli Supreme Court accepts petitions from any party. 

With the proposed judicial reforms, the coalition intends to extend some of the power of the legislature over the judicial branch, claiming to restore a balance of power. 

There has been a broadly-held consensus in Israel for several years that some reforms are necessary. In fact, polling has shown that a majority of Israelis support judicial reforms when asked directly about issues of reform. Polls also show that Israelis want judicial reform to happen through negotiation and compromise. 

Netta Barak-Koren, a professor of Law at the Hebrew University in Jerusalem, and a critic of many of the coalition’s reforms, says the Supreme Court gave itself authority without providing a clear legal basis.

“The High Court of Justice, and the government legal counsel apparatus in its wake, expanded its sphere of involvement to include political issues, arrogated the authority to determine the contents of basic constitutional principles, based its judicial review (…) on vague value-based tests whose application is unconvincing, strayed from the professional and judicial expertise of the judicial system, and placed the State authorities in a state of constant uncertainty about the validity of their decisions,” Barak-Koren said.

While the coalition insists that its reform has in mind only to curb activist judges, there is no doubt that the reforms, as written, would tilt the balance of power in favor of the legislature. 

Until Monday’s passage of the Reasonableness Standard Bill, the Supreme Court exercised the power to declare a proposed legislation or government decision, as “unreasonable” and send it back to the legislature for review and amendment. This allowed the court to function as a check on the legislature’s power. The use of the reasonableness standard in the review of government decisions is meant to ensure that decisions are not made with conflicts of interest or influenced by extraneous interests. 

If the Reasonableness Standard Law survives the Supreme Court review, decisions of ministers, cabinet members, and cabinet decisions made by majority vote, will be removed from the Supreme Court’s review using the standard of being “unreasonable.” 

Knesset Constitution, Law and Justice Committee Advisor Dr. Gur Bligh, warned that removing the standard of reasonableness would “leave decisions in certain areas without effective judicial review.” 

He also said the reasonableness standard is only used a few times per year. 

“We must also remember that the executive branch makes thousands of decisions a year, only a small part of which reach the High Court of Justice and an even smaller number are invalidated,” he told the Knesset committee before the bill’s passing. 

The decision to pass the Reasonableness Standard Bill in first order does appear to be a calculated move. Most likely, the rest of the judicial reform package rests on this new law surviving the Supreme Court's review.

In fact, Justice Minister Levin indicated that he was not willing to alter the text of the bill any further after it passed the Knesset Constitution, Law and Justice Committee because the Supreme Court could use the standard to force him to convene the Judicial Selection Committee, as required by law. Levin plans to delay convening the committee until the coalition is able to pass another piece of legislation altering the composition of the committee. 

The Judicial Selection Bill would allow a ruling coalition to appoint a majority of Judicial Selection Committee electors, making the Supreme Court Justices answerable to the Knesset. 

The attempt to pass the Judicial Selection Bill last March led to the previous climax in protests, following the firing of Defense Minister Yoav Gallant. At that time, Netanyahu announced a halt to the reforms and the convening of compromise negotiations with opposition representatives. 

For a while, it looked as if the protests had worked, the calls for compromise and negotiation were being answered, and a crisis had been averted. 

However, mere days after the announced halt to judicial reform legislation, the protest movement took to the streets again, saying: “The danger has not passed.” 

At issue, said the protesters, was the trustworthiness of Netanyahu and some members of his coalition. 

Opposition Knesset Member Avigdor Liberman said of Netanyahu at the time, “He has no intention of starting real negotiations; his intention is to wait for an appropriate time and blame it all on the opposition for not agreeing to the settlement.” 

With the passing of the Reasonableness Standard Bill, that lack of trust remains and fuels much of the demonstrations. And the lack of trust is not just directed at Netanyahu. 

Critics warned that removing the reasonableness standard would allow the coalition to undertake a host of new laws and decisions without having to worry about the Supreme Court declaring them “unreasonable.” 

Following the passage of the bill last week, National Security Minister Itamar Ben Gvir said he wanted to advance a bill to remove the attorney general’s authority to block ministerial decisions that she deems illegal. His statement appeared to confirm the opposition’s warnings. 

Supporters of the Reasonableness Standard Law say the use of the standard is nowhere defined in law. They also point to countries like the United States, where the Supreme Court can rule a law “unconstitutional” only based on the U.S. Constitution and the Bill of Rights. 

However, it is also clear that the coalition is engaged in judicial reforms to achieve other objectives. The ultra-Orthodox parties in the coalition have not hidden their agenda to use the reforms for an exemption from military service for ultra-Orthodox men. 

In 2017, the Supreme Court ruled that the broad exemption was “unconstitutional” and discriminatory, as it only applied to ultra-Orthodox. 

Many opponents also fear the impact on human rights due to the removal of review using the reasonableness standard, as several coalition members have known histories of making statements against Arabs, Christians, LGBTQ and other minority groups. 

Ruvi Zeigler, an Israeli-born law professor living United Kingdom, wrote: “It [removal of reasonableness] would significantly weaken constitutional review of human rights violations, leaving Israel’s already vulnerable minorities subject to the exercise of untrammeled power by a simple coalition majority. In Israel’s political reality, this means legislation targeting Arab citizens of Israel, asylum-seekers and other migrants, LGBT+ people, and any other unpopular minority will go effectively unchecked.” 

Ben Gvir has accused Arab Knesset members of being terrorists and called for increased settler activity, even when deemed illegal by the Supreme Court. 

Finance Minister Bezalel Smotrich has called for the removal of Arabs from Israel, and for limiting immigration only to Orthodox Jews. 

Opponents of the reforms also question the speed at which the coalition is attempting to pass the reforms. Legal scholars have already acknowledged the demographic trend to the right in Israeli society. This means that within 20 years, the majority of the voting public in Israel will be politically and often religiously conservative. 

Given that fact, many changes the coalition is seeking will have no problem passing a Knesset plenum in the near future. Thus, opponents argue, the coalition’s desire to pass the reforms quickly must bring some personal benefit to the members of the current coalition. 

Prof. Barak-Koren has also taken issue with the speed at which the coalition plans to make the changes. In an article for Mosaic, she noted: “From 1958, when the Knesset passed the very first Basic Law, regulating its own procedures, until the passage of the Basic Law: Human Dignity and Liberty in 1992, every Basic Law was passed—usually with a majority of 80 or 90 MKs—after a lengthy, rigorous, and exhaustive process, typically lasting several years and sometimes over multiple Knessets.” 

Opposition Knesset members have accused the coalition of passing the reasonableness bill to reinstate fired minister Aryeh Deri. 

Deri was removed by Netanyahu in January after the Supreme Court ruled his appointment to certain ministerial positions was “extremely unreasonable” due to his previous convictions. Deri was convicted twice, once in 1999 for bribery, and a second time in 2022 on two counts of tax fraud. 

The coalition agreement would have seen Deri become finance minister. The court believed the appointment of someone convicted of bribery and tax fraud to finance minister was “extremely unreasonable.” 

The opposition’s fears are grounded in the coalition’s past behavior. In late January, the coalition submitted a bill enabling Deri to return to office. The text of that bill formed the basis for the Reasonableness Standard Law. 

Such behavior is one of the reasons supporters of the Supreme Court say it must retain the power of judicial review via the reasonableness standard. They argue that Israel lacks a culture of public shame for misdeeds. They also say that Israeli politicians have repeatedly failed to take personal responsibility for failures. In other democratic countries, criminal behavior or public failings are usually followed by voluntary resignation. 

For example, when UK Prime Minister Boris Johnson was accused of violating the COVID restrictions made by his own office, he resigned.

U.S. Congressional Representative Tom DeLay (R-TX) stepped down from being House majority leader in 2005 after an indictment related to campaign finances. DeLay’s conviction was later overturned. 

German President Christian Wulff resigned when allegations of corruption were laid against him. He was later acquitted of all charges. 

This standard of 'what ought to be done' is absent from Israeli politics. 

Critics warn that doing away with administrative review of elected officials would remove a valuable protection for citizens against capricious decisions by elected officials. 

Thus, the real issue with the protests, while it certainly involves the content of the reforms being proposed, also reflects a deep mistrust of those carrying out the reforms. 

As Alan Dershowitz said earlier this year, “They don’t like the result of the election. And as a result, they’re protesting, and they have no idea what they’re protesting. People don’t protest judicial reform… It’s a surrogate for, ‘We don’t like Netanyahu, Ben-Gvir, and [Finance Minister Bezalel] Smotrich. And if they [the judicial reform bills] would be passed by anybody else, they wouldn’t be concerned about it.” 

Therefore, it appears that the crisis in Israel is a result of a lack of trust in the leadership. Beyond any concern for the types of reforms being proposed, there is genuine concern over the intent of the reforms. 

Perhaps the most necessary reforms for the Jewish state are the reforms the prophet Joel spoke of: “Yet even now,” declares the Lord, “return to me with all your heart, with fasting, with weeping, and with mourning; and rend your hearts and not your garments. Return to the Lord your God, for he is gracious and merciful, slow to anger, and abounding in steadfast love; and he relents over disaster.” (Joel 2:12-13)