The coalition will enact––before the end of the Knesset summer session, July 30––a law restricting the courts’ ability to use the “reasonableness” doctrine, according to News12 political reporter Amit Segal, who is considered one of the best-connected right-leaning Israeli journalists.
Restricting judges’ ability to rule outside the law by using their personal set of values has been promoted by most Zionist political parties, including, most notably, MK Gideon Saar’s New Hope party, whose platform stated clearly:
“The reasonableness cause, which is anchored only in the rulings of the Supreme Court, has become over the years a back door for applying a judicial bias to the review of decisions that are at the core of the actions of elected officials. According to this reasoning, the judges are the ones who determine whether an action or decision of an elected official is reasonable or not. In doing so, the judges place their judgment and their assortment of values above the values of individuals who were elected by the public.
“The reasoning behind the judicial review of the law must be regulated in legislation, in a way that reduces the application of reasonableness by judges, making it exclusively the domain of elected officials.”
Alas, since it joined the forces of chaos and anarchy, New Hope deleted this item from its website, and Saar even accused the coalition of lying regarding this item being a prominent part (item 5) on his platform, but the Internet doesn’t forget.
The bill to restrict the courts’ reasonableness-based rulings will likely adopt the views of Supreme Court Justice Noam Solberg, who is likely to replace the Court’s President Esther Hayut.
Solberg wrote in 2020, “The perceived impression is that the substantial reasonableness test was used by the court to reject a ‘suspicious’ decision, which on its face was flawed by extraneous considerations – considerations that were not proven in court, but were called out by the circumstances of the matter.”
In other words, judges have been ruling based on their personal views and not according to the law.
Immediately after the start of the winter session, in October, the coalition will pass a new law setting up the composition of the Committee to Appoint Judges, based on the proposal of former Justice Minister Daniel Friedman (Kadima). Friedman, who was a combative proponent of restricting the burgeoning control of the Supreme Court over Israel’s political, economic, military, and all other systems, wanted a committee without representation for judges or the bar. Instead, he envisioned a ten-member committee, five coalition and five opposition MKs, that decides on judicial appointments based on a simple majority.
That proposal has its own problems as it gives outsized influence and veto power to the opposition, no matter how small a constituency they might represent and their number of seats in the Knesset, while diluting the will of the majority, no matter how much larger the majority may be. It is likely to force the appointment of bad candidates the opposition wants, in order to get them to agree on good candidates the coalition wants (or vice versa), or simply mediocre candidates. Not to mention the high potential for deadlock situations.
At the same time, the coalition will set aside the override bill, perhaps indefinitely.
One of the reasons the coalition must restrict the courts’ ability to use the reasonableness argument is that, as Communications Minister Shlomo Karhi explained on Newws12 on Wednesday, you can’t fire the Attorney General Gali Baharav-Miara as long as the High Court of Justice is able to rule that it isn’t reasonable. The law permits the government to replace her, seeing as she has been Gideon Saar’s gift that keeps on giving. But the judges like her, so, tough.
Our American readers who follow Israeli politics from the vantage point of a nation that has a millennia-old constitution must pause now, to give a short but heartfelt thanks to the Almighty.
