Ronen Avraham, a law professor at Tel Aviv University's Faculty of Law, says that the passage of the controversial Reasonableness Amendment by the Knesset still leaves room for constructive dialogue on the future of democracy in Israel...
Israel took a significant step closer to a constitutional crisis on July 24, 2023, when the controversial “Reasonableness Amendment” passed its final readings in the Israeli Parliament (the Knesset), becoming law by a 64-0 vote that occurred while the opposition left the Knesset in protest. The amendment aims to reshape the grounds for judicial review of government administrative actions and has sparked nationwide protests. The ramifications of this development are profound, raising concerns about the erosion of democratic principles and the concentration of power in the hands of the government.
In the days leading up to the vote, hundreds of thousands of people took to the streets to demonstrate against the legislation, and there have been calls for a general strike. The protests have been met with a heavy police presence, resulting in several clashes between protesters and police. Citizens from all walks of life have joined the protests, demanding the repeal of the amendment and expressing concerns about the erosion of democratic values.
The passage of the Reasonableness Amendment has also exposed deep divisions within the ruling coalition. While most coalition partners firmly supported the amendment, a few others were more hesitant, fearing the implications it could have on Israel’s economy, security, and solidarity. Eventually, the extremist voices in the coalition prevailed, and the law was passed without any compromises.
Israel’s administrative law, part of the country’s common law system, governs judicial review over administrative actions. One of the key grounds for review by the court is the lack of legal authority for specific administrative acts. However, when there is legal authority, decisions may still be subject to scrutiny based on various factors, including the presence of improper purposes, discriminatory actions, or a lack of proper factual foundation.
The concept of “Reasonableness” was inherited from the British and has been employed in cases where decision-makers consider relevant factors but heavily imbalance them, leading to a manifestly unreasonable decision. In practice, the doctrine has been instrumental in overruling appointments of ministers and senior officials indicted or convicted of corruption-related offenses.
Notably, the Supreme Court’s decisions about 30 years ago to force the dismissal of a minister charged with corruption and recently overrule the same minister’s appointment in a different government fueled calls by politicians to abolish the reasonableness doctrine. Advocates for the law’s abolition argued that decisions should remain in the hands of elected politicians, not the judiciary.
The Reasonableness Amendment was formally introduced as an alteration to Israel’s Basic Law: The Judiciary, which defines the Court’s jurisdiction. The amendment explicitly states that the Court may not consider petitions challenging Cabinet or ministerial decisions on the grounds of unreasonableness, particularly decisions related to appointments.
Seen in isolation, the amendment may appear less drastic, but the fear is that this is just the first step in the government’s larger plan to weaken the Supreme Court and remove constraints on executive power. Indeed, some of the ministers in the government have promised this to their voters. As we all know, democracies no longer collapse immediately, but in incremental steps.
While the amendment may not directly affect individual rights, it poses a significant danger in the realm of corruption and government appointments. By limiting judicial intervention, it weakens the power of ministry legal advisers to halt manifestly unreasonable decisions and potentially allows corrupt practices to go unchecked. Another fear is that the government will gain power by firing various gatekeepers, such as the ministries’ legal councils, replacing them with officials who are loyal to the politicians rather than to the public interest. The most immediate potential threat lies in enabling the government to replace the Attorney General and obstruct corruption charges against Prime Minister Netanyahu. It could also allow the government to make decisions that are harmful to the public interest, such as cutting social programs or reducing environmental protections.
Various groups have already prepared petitions challenging the constitutionality of the amendment before the Supreme Court. However, a hurdle they face is the government’s claim that Basic Laws (the Israeli version of something akin to a constitution) are beyond judicial review.
The Supreme Court, however, has announced in the past that the Knesset, even when it amends a basic law, cannot undermine the core values of the state’s democratic institutions. To strike down a basic law, the Court must decide whether the Reasonableness Amendment does that. In this case, it could use two legal doctrines. The first one is that the Knesset has abused its constitutional power, and the other is a doctrine called: an unconstitutional constitutional amendment. From a broader perspective, the question is to what extent the Supreme Court will look at the bigger picture – the consistent attempts by the government to shift power from the judiciary to itself– beyond the case before it.
With the passing of the Reasonableness Amendment, the coalition government has achieved a moment of victory, securing the amendment’s place in law despite public protests and opposition objections. However, in the past 30 weeks, the opposition has also experienced some important victories, successfully raising awareness about the potential risks to democratic values and the separation of powers. As the Knesset enters a recess for the next few months, this period presents a crucial opportunity for both sides to bridge the divide and reach broader agreements that can strengthen Israel’s democracy and promote unity.
For the coalition government, the passage of the Reasonableness Amendment demonstrates their ability to push through their legislative agenda despite some internal disagreements and immense external pressures. However, they must now address the concerns raised by the opposition and the public, who fear that the amendment may weaken the judiciary’s independence and enable unchecked government power, especially with a government populated with the most extremist religious right-wing members ever.
But responsibility for Israel’s livelihood lies also with the opposition. As the parliament takes a break, it is an opportune moment for lawmakers from both sides to engage in genuine efforts to reach broader agreements. This can involve tackling critical constitutional issues such as the nomination of judges, judicial independence, and especially how fundamental legal arrangements should be changed. By prioritizing the interests of the nation above partisan politics, politicians can show their dedication to the people they represent. Broad-based agreements can help build public trust in the political process and restore faith in democratic institutions.
As legal challenges and political resistance unfold, the future of Israel’s democratic fabric remains uncertain. Only time will tell whether the nation can uphold its democratic principles and protect the rights and liberties of its citizens. By reaching out across the aisle, engaging in constructive dialogue, and seeking broader agreements, lawmakers can demonstrate their commitment to the nation’s well-being and strengthen Israel’s democratic foundations.
Reaching a broad agreement between the camps will reflect the genuine desire of most citizens who, while they may not see eye to eye on ideology, choose to respect each other and avoid continuous conflicts between them.
The future of the country lies not in polarization but in finding common ground for the greater good.
Ronen Avraham is a law professor at Tel Aviv University Faculty of Law and the University of Texas at Austin. He is a member of the Israeli Law Professors’ Forum for Democracy.
Suggested citation: Ronen Avraham, Knesset Passage of ‘Reasonableness Amendment’ Still Leaves Room for Democratic Dialogue, JURIST – Academic Commentary, July 25, 2023, https://www.jurist.org/commentary/2023/07/ronen-avraham-knesset-reasonableness-amendment/.
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