The “reasonableness ground” is code for a mechanism by which the Court can make decisions in place of the elected officials, without a basis in law. Any decision by a government entity can be overturned by the Supreme Court even if it is completely legal, simply because the judge disagrees with the decision itself. The absurdity is demonstrated when the opinion of a Tel Aviv district judge outweighs the Interior Ministry’s immigration policy, acting according to the law. The Court has a very important role – to provide a remedy where the state acts illegally, without authorization, through illegitimate considerations or discriminatorily. However, the Court was never authorized to replace the judgement of other government bodies. There is no reason to assume that its judgement is more correct.
As a result of the adoption of the reasonableness grounds, legal advisors have given themselves the power as well to interfere in the judgement of the elected officials.
Who decides what is right? Who decides what is good? Who decides the proper balance between different considerations? Why is the judge’s discretion better than that of a minister? A situation in which judges bypass the public’s decisions and place themselves and their positions above those of the legally authorized entities is a problematic situation that does not reflect the rule of law.
The reform proposes to limit the use of reasonableness and to annul it solely with regards to elected officials who set policy, meaning the government and ministers. The decisions of civil servants and lower levels will continue to be subject to judicial review in court. The change means that judges will not be able to substitute their discretionary judgement for that of those legally authorized to set policy, and who bear responsibility for its results.
It is important to stress that the Court will continue to fulfill its important task of overseeing the governments’ actions and to review them by existing and recognized legal doctrines: ultra vires, due process, inappropriate considerations, conflict of interest, rights violations, discrimination and meeting the laws’ explicit demands.
The prohibition on expelling the families of terrorists to the Gaza Strip during the Second Intifada (HCJ 7015/02)
During the Second Intifada which begun in 2000 and continued until Operation Defensive Shield in 2002, there was fierce and bloody clashes between the IDF and terrorist organizations. During this period, terrorists carried out over 14,000 attacks on Israel citizens, murdered over 600 and injured thousands.
In order to deter terrorists from carrying out attacks against Israeli citizens, the National Security Cabinet decided to transfer the families of suicide bombers to the Gaza Strip, as a disincentive to potential terrorists.
Abed al-Nasser Mustafa was the brother of terrorist Nasser al-Din, who was responsible for a series of attacks in which 21 Israelis were murdered, some of them he carried out personally. The state issued an order transferring Mustafa to Gaza for two years, after it was revealed that he assisted his brother evade the army, transported him to Judea and Samaria, and even assisted other terrorists.
Even though there was no disagreement that the Cabinet acted according to law, and that Mustafa knew that his brother was wanted and that he willingly aided him, the Court ruled that the decision was unreasonable and ordered it repealed.
Repeal of Interior Minister’s decision to deny entry to BDS activist Lara al-Qassem (Administrative Appeal Request 7216/18)
Lara al-Qassem was student and a BDS activist who promoted the international boycott against the State of Israel. In 2018, al-Qassem landed in Ben Gurion airport in order to study at the Hebrew University. However, her entry was denied by then-Interior Minister Arieh Deri, according to the law that explicitly barred entry to BDS activists. Al-Qassem’s appeal to the Appeal’s Committee as well as to the District Court were rejected, as the Minister’s decision was taken in vires and according to the law.
The Supreme Court held that, while the Minister had the legal authority to prevent her entry, it would nonetheless strike down the decision and the ruling of the District Court. Even though the decision was legal, it was not “reasonable” since al-Qassem did not carry out boycott activities in the year prior to her entering the country.
Prohibiting the appointment of Orly Ben-Ari as temporary State Attorney by the Justice Minister (HCJ 8410/19)
In 2019, State Attorney Shai Nitzan completed his term, and as the government was in an election period, the Justice Minister sought to fill the role with a temporary replacement, for a period of three months. As temporary replacement, the Justice Minister nominated the Deputy State Prosecutor for the Centre District, Orly Ben Ari, who had risen through the ranks of the State Prosecutor’s Office and served in a senior position at that time.
Although the law authorizes the Minister to carry out the appointment, the Attorney-General Mandelblitt decided that “the appointment falls outside of the range of reasonableness in an extreme manner”. In fact, Mandelblitt ruled that any appointment was unreasonable, except for that of his confidant, advocate Momi Lamburger.
The petition was filed to the Supreme Court regarding the reasonableness of Ben Ari’s appointment, and the Court issued an injunction against the appointment. In the end, Ben Ari gave up and withdrew her candidacy.
This question is based on a misunderstanding. Reasonableness does not deal with human rights at all. If an administrative decision violates rules, the Court can examine the issue and rule according to proportionality if it is valid or not.
Definitely not. Every senior appointment has professional requirements and demands the proper procedure, including revealing any conflicts of interests.
It is important to understand that the core of democracy is the authority of ministerial appointments in order to execute the government’s policies. This requires ministers to decide who will be able to actualize the public’s will, for which the government was elected. How can a minister govern if he cannot appoint the proper people in the right places? The hampering of ministerial appointments by legal advisors and courts under the guise of “reasonableness” makes the job of the government for the public impossible.
Judicial selection in Israel is exceptional by every comparative international standard. The serving judges hold veto-power and can prevent the appointment of any candidate to which they are opposed. The current “friend-brings-friend” system leads the Supreme Court to see itself as one closed family.
“You need to remember that the Supreme Court is one family, even if there are different opinions. The good of the state requires a coherent Court, in which the relationship is one of family, with all the differences of opinions. You can’t bring somebody who isn’t family into the system.” (Former Chief Justice Aharon Barak, 2016)
It is forbidden to allow any government branch to turn itself into a self-perpetuating oligarchy. This includes the Court. It is for this reason that it would be illogical for government ministers to decide who will replace them in the next government, or for Knesset members to decide who will replace them in the next Knesset. The results of the current system are clear: homogeneity that over time harms the public and its trust in the Court. In the current judicial selection system, a judge with a slightly different worldview will rarely be appointed to the Supreme Court.
The Judges’ Selection Committee consists of nine members: the Chief Justice and two additional Supreme Court justices, the Justice Minister, a government representative, two Knesset members and two members of the Bar Association.
The appointment of a Supreme Court justice requires a majority of seven out of nine members, meaning that the Supreme Court judges have veto-power. It is important to state that since the Committee was established in 1953, the three judges have almost always voted unanimously on appointments to the Supreme Court.
At first, Justice Minister Levin announced his intention to reform the law so that the coalition will compose the majority of the Judicial Selection Committee. This bill, advanced by the Constitutional Committee, passed its first reading. However, it appears that this proposal has been set aside for the time being, and that the public representatives are searching for an alternative that will be fair and will improve the existing situation. The goal is to create a Judicial Selection Committee that will bring intellectual diversity to the justices of the Supreme Court, to create a balance and to better represent the many views in Israeli society. An additional goal is to remove the veto of the serving judges in the Selection Committee.
We will gain precisely what we are lacking today: diversity, transparency and representation. In addition, we will stop the plummeting public trust in the justice system, which poses a real threat to democracy.
Citizens have the right to influence the state’s character. The Supreme Court is a central player in the state’s policy-making, especially in light of its activist approach and the powers that it abrogated for itself. Therefore, it is critical to have a close link between the values and worldviews of all of Israel’s citizens and of the appointed judges.
A judge’s worldview influences their rulings. The Supreme Court has even more dramatic influence, as many issues are inextricably tied with moral and value rulings. The change will guarantee rulings that protect all of Israel’s citizens and judges that come from all sectors of the population.
In order to protect individual rights, we need judges that see everyone. In order to see everyone, judges must come from diverse backgrounds.
Today, a jurist who thinks differently from the Supreme Court judges has a very small likelihood of being appointed. This has created a “thought-police” in which anyone interested in being appointed must “tow the party line” (including of course lower appellate judges). Without wide diversity within the court between various jurisprudential positions, the result will be homogeneity.
Levin’s reform seeks to change the defective closed system by creating a new balance between Committee members and giving more room to public officials to appoint judges, in order to select professional and diverse judges who will serve everyone.
The truth is that judges in almost all of the leading democracies worldwide are appointed by the elected officials. Somehow, the public in these countries don’t believe the courts to be politicized. Despite the judges being appointed by politicians, from the moment that they are appointed, they enjoy complete judicial independence. It is important to know – the system in which judges appoint other judges to the constitutional court exists only in Israel.
The Court is political only when it allows impeachment for political reasons. This is not the situation in Israel, and will not be the situation after the reform. The judges enjoy complete judicial independence from the moment that they are appointed. This is how it works in all advanced democracies.
Israel’s citizens deserve an independent and diverse Court that represents the entire public. The reform will only strengthen the Court and civil rights.
The judicial branch is the only branch in Israel without checks and balances. In 1995, a quiet revolution occurred, fundamentally changing the Israeli system of government. The State of Israel is the only country in which its governmental system was changed by a Court decision. The Supreme Court gave itself unlimited power: it decided which laws it can strike do, who can petition it, in which issues it can involve itself, and what should be in Israel’s constitution. In reality, the Court continuously writes Israel’s constitution. This means that the Court has the final word, and not the public representatives. This situation turns every democratic decision into a conditional one, awaiting the approval of the Court.
Once one branch annexes the authorities of another branch and concentrates around itself so much power, balance is violated, democracy is harmed and the ability of other branches to operate is impaired.
Striking down laws: Today, the Supreme Court can strike down laws in a panel of three judges alone, without any supermajority. The Court was never authorized to strike down laws; it arrogated this power for itself since the Constitutional Revolution.
Override Clause: In Israel, an override clause already exists in the Freedom of Occupation: Basic Law. It was passed in 1994, at the initiative of former Prime Minister Yitzchak Rabin, in coordination with then-Supreme Court Justice Aharon Barak. According to the override clause, the Knesset can override Supreme Court decisions with a majority of 61 Knesset members. There is no override clause in the Human Dignity and Liberty: Basic Law.
Basic Laws: The Constitutional Revolution rests on the idea that the Basic Laws are Israel’s constitution and that when the Court strikes down laws, it does so because they contradict the Basic Laws. The Court acts by virtue of the Basic Laws – and today it has empowered itself to interfere in Basic Laws themselves. The Supreme Court changes the rules of the game, during the game itself.
Striking down laws: In order to strike down laws, the Supreme Court will need to assemble in full quorum – 15 judges, in order to prevent the judicial decision from being influenced by the panel’s composition. A supermajority of 12 out of 15 judges will be required to strike down laws.
Override clause: According to Prime Minister’s Netanyahu’s announcement, the override clause is now moot.
Basic Laws: According to the reform proposal, the Supreme Court will not be able to rule on the validity of the Basic Laws. There is no other Western democracy in which the Court declared its power to rule on the constitution itself. The reform will situate Israel alongside the leading democracies in the world.
The proposed amendments are very moderate. They aren’t intended to break the system or to completely reverse Barak’s Constitutional Revolution. On the contrary, the Knesset will, for the first time, grant to Supreme Court legal authorization to strike down laws. The reform seeks to define and regulate the Court’s powers, and to add checks and balances to the existing situation.
For the first time, the law will enshrine the Supreme Court’s power to strike down legislation that contradicts the Basic Laws. Unanimous ruling will set a high standard that will raise the conditions for applying the override clause. Every government branch can violate rights in a disproportionate manner – the legislative, the executive and even the judicial. Without a model of “constitutional dialogue” in which the Knesset can respond to the Court, who will protect us from judicial violation of rights? For example, who will protect the rights of Israeli citizens harmed by illegal immigration? It is important to remember that citizens enjoy political rights, among them control over their fate and of the policies to which they are subject. Given that these issues are bound with values and worldviews, the final world must belong to the Knesset, which represents the citizens of the State of Israel.
There are flourishing parliamentary democracies without a constitution and without judicial power to strike down laws – for example, the UK, New Zealand, Switzerland, the Netherlands, Luxembourg, Norway and Finland. The reform doesn’t turn back the clock to the situation prior to former Chief Justice Barak’s Constitutional Revolution. It rather offers a balances solution that recognizes the Court’s authority to carry out constitutional review, while creating a dialogue between the branches.
Does the Attorney General’s legal counsel advise or bind? This questions lays at the basis of this important clause. Is this a struggle over rule of law, or over rule and power? Does the entity responsible for managing the state have the authority to set the agenda?
The reform seeks to return the State of Israel to the system practiced in every democratic country: the Attorney General’s legal counsel advises, but doesn’t decide. Everybody is subject to the law – including the citizens, the ministers and the legal advisors. The reform seeks to subject the government to the law, and not to the personal position of the Attorney General.
Can the government act otherwise than the legal advisors’ position? Who represents the government before the Court? In the case of a disagreement between the minister and the legal advisor – who represents the minister in Court?
In Israel, there is no law that regulates the powers of the legal advisors. In several Supreme Court rulings, there were attempts to establish that the advisor’s legal counsel is binding. This is despite the clear conclusions of two State Committee Reports that deal with this issue: the Agranat Committee Report (1962), which was adopted by a government decision, and the Shamgar Committee Report (2000). Both reports concluded that the government can veer from the Attorney General’s counsel when the government does not accept his position. Review of the legality of the government’s actions is meant to be undertaken by the Court and not the advisor.
The Attorney General has extreme power today, and their counsel is not advice or a legal opinion, but rather a binding decision. All government decisions or proposed legislation require the legal advisors’ approval. The advisors examine whether the decision or proposal will stand in Court, whether they are balanced, and the advisors finally decide upon their fate. They examine all government decisions as to whether they are “reasonable”, and not only if they are legal. They can prevent legislation or decisions, void laws of content or shoot down policy. Of course, this is without the legal advisors being given any legal authorization for this.
The Attorney General also holds a monopoly on representing the state before the Court. Periodically, they present positions contrary to the government’s position – in the government’s name! This is a complete distortion. The Israeli government is forced into situation in which it cannot present its authentic position to the Court, since it is restrained by the legal advisors. There is no democratic country in the world in which the legal advisors as an institution have both a monopoly on representation and binding counsel.
Take for example government bills. The Attorney General or their deputy can even prevent bringing a government bill for discussion (!) in the government. This means that the legal advisors can not only prevent voting, but even discussion. This is an Attorney General directive from 2018.
In practice, the Attorney General doesn’t represent the government in the Supreme Court, but rather the Supreme Court in the government.
Instead of serving the government, the government advisors have over the years become oppositional. Instead of assisting the government to quickly and efficiently execute its policies, they have become, often, a hindrance and a roadblock. Instead of advising according to the law, they advise increasingly according to proportionality or reasonableness, meaning according to their personal values. This situation has no parallel in any other recognized democracy.
The advisors serve also as legislators and issue written directives to ministers. For example, the Attorney General dictated to the Interior Minister not to strip terrorists of their residency status without giving them full social benefits, in complete contradiction to the legislator’s intent. The Attorney General also issued “standards” that dramatically limited the possibility to strip terrorists of their residency status, without any legal basis or authorization to legislate these standards. These standards set, for example, the government must take into account the terrorists’ age, his seniority in the organization, the number of casualties and the severity of the injury. Is it impossible to strip a twenty-year-old terrorist of his status over an attempted major attack simply because the Attorney General decided that they are the super-legislator? It is necessary to check the Attorney General’s activism.
First, the reform proposes to enshrine the position of the advisor in law, which is not the case today. The reform seeks to set clear rules of the game and create order in the current chaos.
Second, the reform establishes that the advisor, as his name implies, is indeed an advisor. The reform itself isn’t a novelty. It rather returns to the position of the Shamgar and Agranat Commissions, which held that the government can act in opposition to the counsel of the Attorney General. If the government’s decision is challenged in court, the judges will review the decision, the claims and the legal situation, and rule according to the law.
The situation in which the legal advisor has a veto over appointments and policy is an unhealthy situation. The advisor’s task is to assist the elected officials, the minister, to execute their polices in the context of the law.
The purpose of the reform is to establish two things:
This question demonstrates a lack of understanding. The reform does not deal with the Attorney General’s criminal authority. Indictments will continue to be filed and the police will continue to investigate public corruption. In appropriate cases, the advisor will warn the minister that in his opinion the minister’s actions are a criminal offense.