The law abolishing reasonableness is first and foremost anti-democratic: it seeks to disrupt the fragile system of balances that underlie Israeli law by eroding the Supreme Court's ability to criticize government actions.
In the absence of balancing mechanisms that exist in other legal systems, this erosion could have devastating consequences for Israeli democracy. But beyond that, the proposed law is bad. In its current form, the law will apparently not fulfill all the wrongful intentions of its drafters, and may cause negative consequences that they did not take into account. In general, the law will increase uncertainty in public law, in a way that will absurdly require broader intervention by the Supreme Court in administrative decisions, in order to remove the ambiguity that the law will create.
Clashes between police and demonstrators in Jerusalem | Yoni Rikner
A few examples will clarify what I am saying. I will start with the Judicial Selection Committee. Last week, a "softening" was introduced into the bill according to which it will also apply to a decision to refrain from exercising authority. Levin apparently thought that by doing so, he would immunize his decision not to convene the committee from judicial review. But this expectation is baseless.
Failure to convene the committee is not only unreasonable. It constitutes a serious blow to the system of checks and balances and to the constitutional infrastructure of Israeli democracy. Failure to convene the committee therefore constitutes an exceeding of authority, or an abuse and bad faith use of authority. Similarly, the bill will not prevent judicial review of a decision to fire the attorney general. The main problem with such a decision is not its unreasonableness, but the fact that it is tainted by a conflict of interest stemming from the fact that criminal proceedings are being conducted against the prime minister and the attorney general is heading the prosecution. The only way to cure this conflict of interest is the resignation of the prime minister.
, Supreme Court. Photo: Oren Ben Hakon
But the bill could also have negative effects that its drafters did not intend. A significant portion of the cases in which the Supreme Court intervenes in decisions of administrative authorities (including ministers) does not deal with their discretion but with the propriety of the process that preceded the exercise of discretion, for example with the question of whether the decision is based on a sufficient factual basis.
A prominent example is the Supreme Court's decision to halt construction in the Apollonia complex in Herzliya, since the Planning and Building Committee was not presented with any data regarding the presence of pollutants in the area. If the proposed law is interpreted as applying to the reasonableness of the process, it will open the door to arbitrary decisions that are not based on proper scientific foundation.
The move led by the amendment is also inconsistent with the Principles of Regulation Law enacted in 2021 (which was pushed for by Benjamin Netanyahu). The Principles of Regulation Law seeks to base the regulatory system in Israel on a rational infrastructure, which is supposed to be expressed, inter alia, in the fact that the process of formulating regulation will be based on a proper infrastructure of data, and will be done transparently and with public participation.
The bill leads the Israeli regulatory system in exactly the opposite direction: by "immunizing" the decisions of the elected officials from criticism based on reasonableness, it encourages arbitrariness, corruption and concealment. The fact that the law applies only to elected officials does not address this criticism, since ministers may assume any authority granted to a civil servant by the law for which they are responsible.
The criticism I presented makes it clear that the real purpose of the law is not to correct the cause of reasonableness, but rather to try to shut the Supreme Court completely. A future ruling by the court based on a different constitutional ground will only serve Rothman and Levin's narrative by giving them another excuse to continue the regime coup by making additional, harsher changes (for example, in the composition of the Judicial Selection Committee).
And since the real rationale of the law is not to correct "reasonableness" but to keep mouths shut, perhaps its initiators should be offered simpler ways to realize their desires, taking advantage of the elimination of the reasonableness grounds: the Minister of Transport can place no entry signs on all roads leading to the Supreme Court, the Minister of Energy and Infrastructure can order the disconnection of the Court from the electricity and water system, the Minister of Environmental Protection can declare the Supreme Court a pollution-ridden area that is forbidden to enter by people, And the secretary of national security can send National Guard officers to deny entry to anyone who does try to get to court. And the Prime Minister: He could be interviewed on CNN and say in English that everything was done by broad agreement.
The writer is a professor at Bar-Ilan University's Faculty of Law and head of the School of Sustainability and the Environment
Wrong? We'll fix it! If you find a mistake in the article, please share with us