By Professor Yoav Dotan
The proposed legislation to trim the scope of the reasonableness standard in court decisions could put me in a bind. On the one hand, I have been one of the clear detractors of the Supreme Court when it comes to its overreach in citing reasonableness as a rationale for its rulings, and I would welcome a scenario in which it would no longer be used so frequently. On the other hand, I am vehemently opposed to the judicial revolution that the government has been pursuing.
Scaling back the reasonableness standard is the first step in a judicial revolution that will also politicize the way judges are confirmed to the bench, something I have long ferociously opposed, because it will destroy the legal system. That is why as a citizen, I must stand against it.
The current language that passed the committee phase and now heads for its first reading in the plenum solves my dilemma. The bill’s current format is absolute and radical; if it takes effect, it will eliminate the reasonableness test altogether, which could deal a major blow to Israelis’ rights – especially when it comes to ordinary people’s ability to defend themselves against arbitrary government decisions. The test, as a means of judicial oversight on the executive branch, is a multifaceted device: it provides a judicial review on the government’s policies and on the decisions made by ministers and bureaucrats.
Video: Overnight protest against the judicial reform outside the home of Defense Minister Yoav Gallant (Credit: Yaron Doron)
My issue with the reasonableness standard used by the Supreme Court is in how it has been applied to general policy decisions, such as on fortifying schools in the Gaza area from rockets, and on how to build a metro line in the Tel Aviv area or military operations.
This standard should not be applied in policy areas, because there is no justification to have the court’s analysis trump the government’s overall assessment before it makes such decisions. Such decisions are matters of principle and should enjoy democratic legitimacy, which is afforded to the government rather than the courts. What’s more, such decisions require technological and professional expertise that only the government has.
That’s why I believe that government resolutions that get passed by the full cabinet and have gone through the convoluted multi-agency process by experts should not be subject to the reasonableness clause. That said, the bill currently on the Knesset docket gives blanket exemption to all government decisions, even those made by a single minister. In fact, everything can be defined as a ministerial decision. This could, for example, apply to whether someone gets an entrance visa or an import license for communications devices.
The democratic rationale to limit the scope of judicial review no longer applies when such decisions affect specific individuals because even the strong checks and balances that restrain the branches of government fail to deliver in such cases, including the oversight mechanism in the Knesset, the media, and the various NGOs.
In fact, petitioning the court is the only way such individuals can seek redress for their grievances. If the bill passes, the politicians are not going to be hurt, and neither will various NGOs promoting good governance. Those who are going to be hurt will be the very people who seek to get a firearm permit or a beautician who has had her business license revoked by the Health Ministry.
In such cases, the bill’s current language would deprive the court of its strongest means to review the government’s decision. It will also deny citizens of the only practical defense they have against abuse by officials making arbitrary decisions.
That is why those who are critical of the way the court has used the clause should oppose the current bill, which throws the baby out with the bathwater. This baby is not the court or judicial review but the civil liberties of each and every one of us.
Yoav Dotan is an Edwin A. Goodman professor for public law and former dean at the Faculty of Law at the Hebrew University of Jerusalem.
{Written by Professor Yoav Dotan and reposted from IsraelHayom}
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