Reasonableness Standard in Israeli Government
Israel Update – Week of July 9, 2023
Reasonableness: For the past six months, Israel has been undergoing nothing less than an upheaval. What began with a small demonstration on Tel Aviv’s Kaplan street one Saturday night in January now threatens to drag the country into a civil war. The bone of contention revolves around something called “reasonableness.”
In November of 2022, Israel held its fifth elections in three and a half years. Benjamin (Bibi) Netanyahu’s Likkud Party put together a 64-seat coalition, giving it a majority in the 120 seat Knesset. In Israeli terms, this was a landslide victory. It is one of the largest coalitions ever put together. One of the tenets of the Likkud party platform is judicial reform. Over the past thirty years, there has been a growing feeling among many Israelis, particularly those on the conservative side of the political spectrum, that the power of the Supreme Court was getting out of hand. Israel has no constitution and so the system of checks and balances that exists in the U.S. is less well-defined in Israel. Judicial reform, as forwarded by the Likkud, consists of three separate avenues:
Changing the makeup of the committee that appoints judges to include more members from the government at the expense of members from the (unelected) Bar Association
Reducing the power of the Attorney General
Reducing the power of the court to invoke the “Reasonableness Standard” – more on this below.
The opposition, led by former Prime Minister Yair Lapid of the Yesh Atid Party and Major General [Res.] Benny Gantz of the Mamlachti Party, galvanized a large number of people, predominantly from Israel’s elite – upper class, well-educated and Ashkenazic – and took to the streets. The fact that the media is largely controlled by this elite enabled the opposition to cobble together progressively larger and larger numbers of people at the Kaplan Street rallies. The term “Judicial Reform” was rebranded as “Judicial Revolution,” and Prime Minister Netanyahu was rebranded as a dictator. More than 100,000 people regularly attended the Kaplan demonstration, and similar demonstrations popped up around the country. Demonstrations were usually followed by demonstrators blocking main roads such as the Ayalon Expressway in Tel Aviv. The demonstrations reached their peak in March after Prime Minister Netanyahu fired his Minister of Defense, General [Res.] Yoav Gallant for not fully supporting the judicial reform. The demonstrations forced Bibi to recant and to temporarily put judicial reform on hold. The President of Israel, Isaac Herzog, stepped in and attempted to work together with the two sides in order to reach some sort of compromise. Three months of negotiations has led nowhere, and the Likkud has decided to renew legislating judicial reform, albeit on a much smaller scale. Currently, the only issue that the Likkud is currently forwarding is the “Reasonableness Standard.”
What, then, is the “Reasonableness Standard”? The “Reasonableness Standard” is used by courts to strike down government administrative decisions that they deem blatantly beyond the scope of what a reasonable and responsible authority would decide. The “Reasonableness Standard” can be and has been applied to government appointments and policies. The court used the “Reasonableness Standard” when it ruled in January that Prime Minister Netanyahu's decision to appoint Shas chairman Aryeh Deri to two ministerial positions, despite three criminal convictions on white-collar crime committed while he was in power, suffered from “extreme unreasonableness.” Netanyahu was forced to fire Deri. Should the “Reasonableness Standard” bill pass into law, the Prime Minister may attempt to reappoint Deri to his former positions of Health Minister and Interior Minister.
Those in favor of the legislation argue that the formulation of the “Reasonableness Standard” is entirely subjective. There are no set guidelines on when reasonableness can and should be applied to a matter. What is “reasonable” and what is not? It all depends on who you ask. The Likkud and its coalition partners determine that as there are no clear criteria for the application of the “Reasonableness Standard,” judgments of government administrative decisions are essentially based on the world views of Supreme Court justices. This subverts the policies of elected officials with those of undemocratically appointed judges. If a democratic government cannot implement its own policy, then the country can no longer be considered democratic. The opposition argues that Supreme Court justices are unbiased and are not bound by the desires of voters. Given that the country does not have a constitution, the justices must define the “golden standard” by which a reasonable country should be run. If the court cannot overrule “unreasonable” legislation, who is to prevent the government from mandating prayer in schools or adversely impacting the rights of the LGBTQ? The opposition constantly repeats the mantra that Hitler was elected in 1933 in democratic elections. Speaking objectively, both sides make compelling arguments. Both sides have the support of academics and judges, current and former. One would expect that whichever side emerged “victorious,” the other side would graciously accept “defeat.”
Last Tuesday, the “Reasonableness Standard” passed its first reading. The bill's next stage will be a return to the Knesset Constitution, Law and Justice Committee, which has begun to prepare it for its second and third reading. In response, the opposition declared a “Day of Disruption.” From dusk until dawn, major roads around the country were blocked. The “Day of Disruption” culminated in a large rally at Ben Gurion Airport that disrupted flights. The owners of the BIG chain of strip-malls announced on Sunday that all of its shopping malls would be closed on Tuesday in sympathy with the demonstrators. This decision boomeranged on the owners. Many of the large chains with stores in BIG malls accused the owners of illegal conduct by causing them to lose income and by forcing them to support a movement that they did not necessarily support. The most vocal of the franchise owners was Rami Levi, owner of the country’s largest chain of supermarkets and a well-known Likkud supporter. Further, the BIG owners ran afoul of the Israel Securities Authority. Many pension funds invest in BIG, and by closing the malls, the owners were justly accused of adversely affecting the pension portfolios. BIG stocks crashed and the owners retracted their edict.
Next week, the government will introduce the second and third readings of the legislation. Another “Day of Disruption” is planned for Tuesday, July 18. The opposition is threatening to cause the country to go to a halt. Rumors are circulating that reserve Air Force pilots and other senior reservists have given notice that they will no longer volunteer for reserve duty. Some doctors are also making similar threats. The U.S. has been vocally supporting the opposition, accusing the Likkud of taking the country “off the rails.” Thomas Friedman, in an Op-ed in the New York Times, asserts that the U.S. will soon be reviewing its relationship with Israel, in a large part due to its judicial reform.
The next few weeks will be crucial in determining what Israel will look like in the years to come.
Wishing you a quiet week,