This time it took the Tel Aviv police about one hour to clear the anarchists from Ayalon Highway Saturday night – the blessed result of former district commander Ami Eshed’s resignation last week. Order was restored with water hoses and other means (mostly cops finally daring to shove the angry boomers off the road). Still, the police were gentle and loving compared to the way they dispersed similar demonstrations by non-ruling-class Israelis: Haredim, Ethiopians, Settlers, and Arabs.
In his disgraceful resignation speech, dressed in his police uniform inside a police building, Eshed argued that his only choices were to contain the demonstrators, meaning to let them do their thing for hours, including starting fires on the highway, or, as he put it, “filling up the Ichilov hospital emergency room.” The cops showed there was a third way: they didn’t break bones, they simply hosed and shoved, on occasion roughly. No ambulances were involved in the dispersal of this rally.
The Netanyahu cabinet will debate on Sunday expanding police powers in handling disorderly protests. The PM invited AG Gali Baharav-Miara to explain why the prosecution and the police have been employing selective enforcement: if a demonstrator’s skull is adorned by a yarmulka and earlocks you bash it in, if it isn’t, you give it a kiss. The AG is expected to argue that the rights of the protesters must be protected, even at the cost of some disturbance to public order. She is also going to argue that the very notion of a government seeking to enforce law and order in rallies against it constitutes a problem.
The organizers of the boomer protests declared Saturday night that if the bill to restrict the reasonability clause is passed by the Knesset in a first reading on Monday, they would declare Tuesday a day of resistance (thus adopting the Arab terrorists’ name for themselves against the occupying Jews). On this day, boomers and anarchists plan marches, demonstrations, convoys, and disruptions across the country starting at 8 AM. At 4 PM there will be a demonstration at Ben Gurion International Airport, and starting at 8 PM there will be demonstrations and marches in many cities in Israel.
The same organizers declared: “The people of Israel do not desire a dictatorship, and they do not desire unilateral and dangerous dictatorial legislation that will crash the economy, harm security, and lead to a rift in the nation. The people of Israel will not give up their democracy and will not live under an extreme and dangerous tyranny.”
The reasonability clause was imported from the British legal tradition’s “Rule of Reason,” which later developed into the claim of improbability, which was used by the courts as an independent ground for the disqualification of administrative action by the government or one of its branches.
The problem is that Israeli courts have been over-using the reasonability clause, turning it into a tool with which they can routinely ignore the intent of the legislator in favor of what appeared reasonable to them based on their personal moral code and social milieu.
In a February 18, 2020 article in HaShiloah, sitting Supreme Court Justice Noam Solberg argued regarding Associated provincial picture houses v. Wednesbury co, 1947: If a decision taken by an authority in a matter under its authority is so unreasonable that it would be impossible for any reasonable authority to have ever made such a decision, then the court can intervene. This, I think, is the right call. However, to prove that a decision to such a magnitude is involved, an overwhelming claim is required, and in this case, the facts are not even close to something of this kind at all.”
According to the proposed amendment to Basic Law: Judgment, Item 15, clause D, will be followed by clause D1: “Notwithstanding what is stated in this Basic Law, those who have the authority to adjudicate according to law, including the Supreme Court, will not discuss or issue an order against the government, the prime minister, any minister, or another elected official as determined by law, regarding the reasonability of their decision.”
Mind you, the courts can still rule against government decisions based on a slew of arguments, including disproportionality, lack of qualification, and other consideration. The difference between those and the reasonability doctrine is that in the former, the judges must detail why a given decision had failed to meet the standards in their opinion, whereas with the reasonability argument, they only have to state that it doesn’t look right to them.
And over this ease with which judges may revoke government decisions, the anarchists are prepared to set the country on fire, and the AG is giving them her wholehearted support.
