“The reaction of the Israelis will determine if the Government advances to complete the judicial reform”

2023-07-25 08:03:54

What exactly does the “reasonableness” clause change, what does it consist of?

The Reasonableness Law is an amendment to a basic law that prevents Israeli courts from reviewing the reasonableness of decisions made by government ministers or by the government as a whole. Under Israeli administrative law, both elected and non-elected officials must exercise their legal authority in a reasonable manner, and courts – especially the Supreme Court – can overturn decisions they consider manifestly unreasonable. The law now prohibits courts from applying that power to elected officials. As a result, they may act unreasonably, for example appointing unqualified candidates to public office or attempting to remove officials they do not like.

Is it the first step to dismantle the judicial architecture, as Justice Minister Yariv Levin and Public Security Minister Itamar Ben-Gvir have said?

Many in Israel fear that this is the first step to further weaken Israel’s system of checks and balances. Minister Levin has publicly announced his intentions to politicize judicial appointments and government legal services, and Ben Gvir has been his ally on this project. Public reaction in Israel to the new law may determine whether they will attempt to move further in this direction, and at what speed and intensity.

Can the Supreme Court annul the approval of the law?

The Supreme Court has reserved the power to strike down basic laws, which are constitutional instruments, if their promulgation amounted to an abuse of the constitutional process or if they are contrary to the fundamental character of Israel as a Jewish and democratic country. To date, the Court has never done so, and most observers do not expect it to now. However, you can state that you will use other administrative law doctrines more broadly to compensate for your failure to continue to rely on reasonableness.

Israel’s largest union is considering calling a nationwide strike, more than 10,000 army reservists are threatening to resign and hundreds of thousands of protesters have been in the streets for weeks, blocking the entrance to the Knesset. Where could all this end?

Many sectors of Israeli civil society are massively opposed to the law, which would generate political, economic and security instability. Israel is likely to enter a long period of uncertainty. But unless some members of the coalition defect – which currently does not seem likely – there is no clear path for the opposition to overthrow the government before the next elections, in three and a half years.