Israel’s Supreme Court is either under attack or undergoing necessary reform, depending on who you ask.
While there is talk of shelving the larger judicial reform package originally proposed by the government, a bill seeking to annul the court’s “reasonableness” criteria for overturning legislation passed its first Knesset reading last week and is expected to pass its second reading this week.
It will likely pass its third reading next week, after which it will become law and the Supreme Court will no longer be able to judge Knesset legislation, appointments, or other government decisions on subjective grounds of “reasonableness.”
The reasonableness doctrine holds a distinctive place within Israel’s legal framework. Specifically, it is a component of administrative law which governs the circumstances under which courts can intervene in administrative or bureaucratic decision-making processes. The doctrine was introduced by Justice Aharon Barak during his initial years as a Supreme Court justice, nearly 45 years ago.
The court “certainly considers itself authorized (by itself) to strike down any law it wishes to cancel, including, of course, a law that would limit the ‘reasonableness powers’ the court created for itself during the 1980s and 1990s,” he said.
The court has used several “open-ended excuses” for striking down laws, “such as improper motivation, improper discussion in Knesset, and a vague combination of rights,” he added. “The court could use any of those excuses or a new one,” he added.
At the same time, she told Zenger News, “The [court has] refrained from determining whether, if such an amendment were to pass, it would be able to disqualify it. That is, [court] separated the question of the limits of the constituent authority of the Knesset from the question of the court’s ability to enforce it.”
Agreeing with Kandelshtein, Ori Aharonson, a senior lecturer at Bar Ilan University’s faculty of law department, told Zenger News, “There is no broad agreement or principled discussion of what would be the proper arrangement when it comes to reasonableness.”
Netanyahu added that there was a lot of misinformation being spread about the judicial reform effort.
“We are trying to bring Israeli democracy to where it was in its first 50 years. And it was a stellar democracy. It still is. Israel is a democracy and will remain a vibrant democracy, and believe me, the fact that people are arguing and demonstrating in the streets and protesting is the best proof of that. And that’s how it will remain.”
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