Until a week and a half ago, few people in the country even knew about the existence of the grounds of reasonableness, or wondered about its importance. Today it seems that it constitutes the most important principle for the continued existence of the State of Israel. How did we get to this place?
In the past, reasonableness was the subject of discussion mainly among academics and judges. If we look at Wikipedia as a measure of the importance of a subject, since the formation of the current government, the length of the article has increased by 75%. Before the current government, it was a sleepy, dry article, and after the formation of the government, hundreds of edits were made to it. The so-called - something has awakened.
To understand what reasonableness is, we need to go to a more central term: the rule of law. The idea that citizens live under the law, not under the arbitrary decisions of any ruler. Justice Alex Stein described the rule of law as follows: "We all bow our heads before the law, while the law bows its head before no one."
The pillars of the rule of law include: generality (the law applies to everyone equally), publicity, lack of retroactivity, simplicity, uniformity and consistency. In simple language - a citizen wakes up in the morning and knows that it is forbidden to evade taxes, that murder is forbidden, and that parking in red and white is fined. The citizen knows that this is the law that applies yesterday and will apply tomorrow, and that if the legislature changes a law, then the new law will be general and public and simple and uniform and consistent.
A dictatorship lives against the rule of law, because the dictator is above the law. Laws can change from day to day, a person can be arrested for an offense enacted the day before, or that applies only to certain people. Under the rule of law, a law-abiding person will be a free man. In the absence of the rule of law, even a law-abiding person lives in fear of the law.
In most of the free world, the rule of law is upheld through a constitution and a constitutional court. If Congress passes a law permitting warrantless home searches, for example, the Supreme Court will strike down the law on the grounds of unconstitutionality. There are no grounds for reasonableness in most of the world.
In England, in the absence of a constitution, the courts were forced to create and stabilize the rule of law through case law and the observance of precedents. When a governmental authority exceeded the reasonable limits of the rule of law, a petition against the government could be accepted on the grounds of unreasonableness, inter alia.
Here in Israel we inherited the grounds of reasonableness from the British. In Britain, reasonableness is a small component of the law, while in Israel the cause has become a central tool in public law. If we draw an axis on one side of which there is an absolute rule of law in which the dry law never gets wet, and on the other side a super-judge who can invalidate any law on the pretext of reasonableness (thereby abolishing or subordinating the rule of law to reasonableness), the Israeli case is in the middle. Where the grounds of reasonableness are always supreme, the citizen's vote for the Knesset is meaningless.
Reasonableness and democracy, or the rule of law, are therefore opposing values, but this does not mean that one must choose between the two values. Both are important, but we must balance them, while allowing citizens to defend themselves against a reasonable and arbitrary dictatorship through their representative.
The tragedy is that there is a broad consensus on the issue. Gideon Sa'ar promoted reducing the cause of reasonableness and strengthening democracy, Daniel Friedman promoted reform on the issue, and Supreme Court presidents Moshe Landoy and Asher Grunis strongly criticized reasonableness.
So why is there such strong opposition to the reform on the grounds of reasonableness? This was well explained by Yair Lapid, who said: "We need the reasonable grounds because we have an unreasonable government." It is not to reduce the grounds of reasonableness that Lapid opposes, but to the election results. It is not the reform he supported in the past that he criticizes, but his separation from the prime minister's chair. For Lapid, for the opposition, in the pursuit of power - everything is reasonable.
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