Unfavorably, an analytical tool from administrative law has become a slogan that threatens to tear us apart. Because in the battle that is taking place now, neither side takes prisoners and does not bother to tell the truth, and in the battle for reasonableness, we are lied to, misled and incited without blinking. They take advantage of the fact that this is a complex legal ground, which even many lawyers are not fully familiar with.
President Herzog: "Let go of the ego, we can agree on the grounds of reasonableness" // Information Center
Let's start from the end: the protest leaders and their aides, those among them who do understand the grounds for reasonableness, have put together a particularly malicious false libel, according to which the current bill will destroy Israeli democracy.
The State of Israel was a thriving democracy for 50 years, without using the legal tool called the "grounds of reasonableness." It will remain democratic even if the reduction of reasonableness is legislated exactly as the coalition wants.
On the other hand, the current version of the bill is sweeping and far-reaching, and its extremism is not necessary to correct the serious flaw that has occurred since Aharon Barak's Supreme Court overturned the grounds for reasonableness into what no one ever intended: a tool that allows the Supreme Court to control us completely and exclusively. Indeed, Israeli democracy is crippled by excessive and extreme use of the grounds of reasonableness, but it does not correct unreasonable extremism in its counterpart.
The tools of the High Court of Justice
It must be understood that the administrative courts, headed by the High Court of Justice, have at their disposal various tools to examine the propriety of the authorities' actions. Among other things, the grounds for discrimination, the grounds of authority, arbitrariness, proportionality and whether the authority complied with the rules of natural justice are examined. And the latest innovation – the judicial estoppel on which Deri's tenure as minister was disqualified, which also has nothing to do with the grounds of reasonableness.
Demonstration in front of Aharon Barak's house // Moshe Ben Simhon
All these tools were at the disposal of the High Court of Justice before the Aharon Barak era, and will remain even after the new legislation. However, Barak's initiative introduced into the administrative law space, in a comprehensive and extreme manner, the question: Do the decisions of the government, the minister, the official, and the Knesset radically deviate from the realm of potential reasonable decisions?
Through this dramatic innovation, Barak and his successors succeeded in entering an area reserved for parliament and government in every democratic country, namely setting policy and norms in society. Again, this is not about authority, equality, arbitrariness, nor is it about infringing on freedom of expression. In these matters, the court will have jurisdiction even after limiting the cause of reasonableness. This refers to the court's non-interference in decisions and laws regarding the expulsion of illegal infiltrators from the country, or a minister's ruling that the Israel Prize should not be awarded to anyone who supports BDS, and even in matters of the reasonableness of the IDF and Shin Bet's war on terror.
Power against negligence
It is important to emphasize how important reasonableness is as a legal tool against the daily injustices of government agencies, from the Population Authority to the Electricity Authority. Government bodies are often lazy, negligent and deaf-hearted. Against them, it is necessary to preserve in the hands of the judges the ability to determine that a particular administrative decision exceeds the realm of reasonableness, in order to protect us.
Justices of the Supreme Court. Not in their hands, photo: Oren Ben Hakon
But not so when talking about setting social, political, political norms. This is the role of the Knesset and the government elected by the people – not of a group of judges, however distinguished and educated.
But some scholars, who actually support reducing the grounds of reasonableness, rightly point out the danger inherent in the wording at hand. For example, according to the current version, any decision made by an official can be classified as a ministerial decision, and then the ability to cope with the laziness and arbitrariness of the officials will be severely impaired. Not to mention an opening for corrupt and tyrannical decisions and moves, in matters of appointments and in general.
However, the solution to this does not lie in limiting the grounds only to policy decisions made by the government in its plenum. And what about when a minister makes a moral policy decision, such as denying Israel prizes to enemies of the state? Here a middle path is required, between the current proposal and the substantive criticism voiced.
After the arrest of the protest activist against the legal reform - protests in Petah Tikva, photo: section 27A of the Copyright Law
Protests against judicial reform, Photo: AP
Therefore, it takes wisdom and cleanliness of most lawmakers this week to moderate the current wording, but it is important not to fall into the trap of those who threaten us with rebellion, falsely claiming that the current legislation will lead to the end of democracy. Because if these warnings and threats were true, the late Supreme Court President Moshe Landoy was also an anti-democrat, as was Supreme Court Justice Noam Sohlberg and many other good people, clear advocates of democracy and integrity, who supported and support amendment and a significant reduction in the use of the grounds of reasonableness.
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