From All-Out Assault to Salami Slicing Tactics: Israel’s Crisis Continues
The Israeli governing coalition is now “only” trying to strip the Supreme Court of its power to conduct reasonableness review of cabinet decisions.
Photo by Olivier Fitoussi,Flash90
Less than two weeks before the end of the Knesset’s summer session, Israel finds itself again on the brink of a major clash between the government and its opponents. Mass protests are continuing, interspersed with “days of resistance” and “days of disruption” involving extensive blocking of major roads, rail stations, and the airport, and army volunteers are withdrawing en masse their consent to serve in reserve duty. The country appears to be sliding into a prolonged state of civil unrest and political instability.
At the heart of this recent round of protests is Prime Minister Benjamin Netanyahu’s decision to pass one part of the legislative package that comprised the coalition’s broad judicial overhaul plan, and the consequent rush by the coalition members of the Knesset to pass a law intended to limit judicial review over governmental decisions on reasonableness grounds. While the specific legal issues affected by the proposed legislation are not insignificant in and of themselves, the huge political controversy in Israel around the proposed legislation emanates from the symbolic baggage appended to it: It illustrates the coalition’s continuing push to increase the executive power it holds at the expense of existing checks and balances, without obtaining broad political support in the Knesset.
How Did We Get Here Again?
The political crisis that has engulfed Israel since Jan. 4 has changed its dynamic in recent weeks. This crisis began when Minister of Justice Yariv Levin presented the government’s radical plans to overhaul Israel’s judicial system (we have discussed the proposals and the reactions to them here, here, here, here, here, and here). After massive protests, which culminated in a spontaneous eruption of massive demonstrations on March 26 following the sacking of Minister of Defense Yoav Gallant, who spoke against the judicial reform (though this sacking never entered force), Netanyahu announced on March 27 the suspension of the proposed reforms. The suspension was followed by political negotiations between the opposition and coalition under the auspices of the country’s president, Isaac Herzog—during which the protests continued, albeit with less intensity.
Although it was reported that the parties were close to an agreement on some minor legal reforms (reduced judicial review of plenary cabinet decisions and more flexibility in terminating governmental legal advisers and in allowing the government to obtain private legal representation) in exchange for a commitment on a long-term freeze of legislation related to the judicial system, the talks collapsed on June 14. The immediate trigger for their collapse was the government’s attempt to postpone elections of Knesset members to the Judicial Selection Committee by instructing a coalition vote against all candidates on the ballot, with a view to forcing new elections a month later. Although an opposition representative was elected, the opposition saw the attempted delay as an act of bad faith and a walk back from a soft pledge the prime minister gave the opposition leaders and the president not to meddle with these elections. In response, the opposition suspended the talks on judicial reforms until the Judicial Selection Committee was to be convened (something that Minister of Justice Levin has already indicated he does not plan to do anytime soon).
Netanyahu seized on the opposition’s suspension of the political negotiations in order to maintain that the opposition was never serious about the talks. In view of the competing pressures on him—from members and supporters of Likud and other coalition parties heavily invested in the judicial reform agenda, to the opposition and the protesters who rejected all or almost all every aspect of the planned judicial overhaul—Netanyahu opted for a limited legislative push during the current Knesset session. He decided to pass one component of the Levin plan: a law limiting the Supreme Court’s authority to review the reasonableness of government action. It was speculated that Netanyahu believed that the limited scope of the legislation would not give rise to extensive protest, comparable to the one he faced in March. It has also been speculated that this law, if passed, would increase the chance that the government would try to fire the attorney general (who, in Israel, is an independent public servant appointed for a fixed term of service).
Not surprisingly, the two camps view the proposed legislation in a starkly different manner. Some members of the coalition have tried to present the government’s attempt to pass the reasonableness law as a modest face-saving measure, designed to illustrate to its political base its ability to withstand the political pressures generated by the political opposition and the protest movement. For the opposition and the protesters, the proposal to cut reasonableness review is problematic in and of itself—but more than that, they see this potential passing as the first step in the implementation of the larger judicial overhaul plan.
From this point of view, the only thing that has really changed in this round of political confrontation in Israel is the coalition’s tactic in advancing the reform package: a shift from an all-out assault on the judicial system to an incremental strategy—a “salami slicing tactic” (sometimes referred to in democratic backsliding literature as “death by a thousand cuts”). According to this line of thinking, if the coalition is able to pass the reasonableness law, it will develop an appetite for the rest of the reform. A number of coalition figures have indeed indicated an interest in passing other parts of the judicial reform in the fall.
The Pending Bill
As explained in a previous piece, the reasonableness doctrine (or the patent unreasonableness test) plays a central role in Israeli administrative law. It allows courts to review the procedure by which executive decisions are adopted, the weight given during the decision-making process to different considerations underlying the decision and the final outcome, asking in each connection whether the government acted in ways in which no reasonable government could have acted. The doctrine was developed essentially to ensure that government officials respect their fiduciary duties vis-a-vis the public they serve and exercise their powers with a view to advancing the public interest.
While some other common law countries have developed similar administrative law doctrines to reasonableness review, Israeli courts are often regarded as particularly activist in the application of the doctrine. As a result, there have been repetitive calls over the years within legal academia to limit the application of the doctrine—especially in relation to the weighing of competing considerations in policy decisions. Other voices in academia have rejected these calls, pointing to the restraint employed by the Supreme Court in the application of the doctrine and noting that Israel lacks effective parliamentary checks on executive power such as congressional confirmation hearings on appointments. Nor does it have robust public conduct norms or direct electoral accountability mechanisms that generate effective limits on the application of governmental power. Against this background, it is claimed that the Supreme Court plays a unique role in protecting the public interest and in preventing official corruption (especially in relation to appointment to governmental positions).
Following the decision in June to resume a part of the judicial overhaul legislation, the Knesset Constitution, Legislation and Law Committee—whose chair, Simcha Rothman, has been one of the architects of the judicial overhaul project—started considering a bill that would strip away the court’s power to apply the reasonableness doctrine to decisions taken by elected officials in the government. The version that has passed the committee and was approved on first reading by the plenary—in both cases on a strictly party-line vote—and that the government plans to approve in the Knesset’s plenary, reads as follows:
Basic Law: Adjudication Bill (Amendment—Reasonableness Grounds):
"Notwithstanding the contents of this basis law, whoever holds legal powers of adjudication, including the Supreme Court when sitting as a High Court of Justice, shall not consider the reasonableness of the decision of the government, the prime minister or any other minister, and shall not issue an order against any of them in the said matter. In this section: “decision”—any decision, including in matters of appointments or a decision to abstain from exercising any authority” (informal translation by the authors from the original Hebrew).
"על אף האמור בחוק-יסוד זה, מי שבידו סמכות שפיטה על-פי דין, לרבות בית המשפט העליון בשבתו כבית משפט גבוה לצדק, לא ידון בעניין סבירות ההחלטה של הממשלה, של ראש הממשלה או של שר אחר, ולא ייתן צו בעניין כאמור; בסעיף זה, ״החלטה״ - כל החלטה, לרבות בענייני מינויים או החלטה להימנע מהפעלת כל סמכות״
The coalition presented the proposed bill as a soft version of its earlier proposal to eliminate the administrative law ground of unreasonableness altogether, since it applied only to cabinet-level decisions (and not to decisions by unelected or municipal officials). It based the distinction offered in the bill between elected and unelected officials on an academic article published by a conservative judge—Supreme Court Justice Noam Sohlberg—in which he criticized the court’s reasonableness jurisprudence as too interventionist in nature and called for greater judicial restraint especially when reviewing policy decisions endorsed by the cabinet or cabinet ministers.
The opposition rejected this proposition, noting that (a) the limited application to elected officials is part of the government’s push to concentrate unlimited power in the hands of politicians also at the expense of career civil servants and (b) government ministers may, if they wish, divest most civil servants subject to them of their executive authority and exercise such authority themselves instead. This effectively would allow them to shield such exercise of authority from reasonableness review. Opposition speakers and other critics of the bill also pointed to the differences between the bill and Sohlberg’s proposals—especially to the fact that whereas he sought to restrain some applications of the doctrine, the coalition seeks to eliminate it altogether for all decisions taken by elected officials. In an unusual turn of events, Sohlberg issued a statement indicating—without expressing a view on the contents of the pending bill—that he did not call for legislation but rather adjustment of the reasonableness doctrine through the case law. In the same vein, some of the leading academic critics of the Supreme Court’s reasonableness doctrine have spoken publicly against the proposed bill, claiming that it goes too far in shielding non-policy decisions and that it fails to create alternative checks on executive power.
Another source of criticism of the reasonableness bill has been the reference at the end of the section to the inapplicability of the reasonableness doctrine to abstentions from exercise of authority. This was not included in the initial version of the bill brought before the committee, and it has been seen by critics as specifically intended to shield Minister of Justice Levin from future legal proceedings challenging his refusal to convene the Judicial Selection Committee. Some legal experts have claimed that tailoring a constitutional text in this manner constitutes an abuse of the process of formulating basic laws, which might lead the Supreme Court to invalidate the amendment to the basic law. (It should be pointed out, however, that whereas the “abuse of constitutional process” doctrine has been considered in a few court cases, the Supreme Court has never relied on it to strike down basic laws. Its potential use in this specific case seems unlikely to us.)
Finally, as with other parts of the judicial overhaul, government and Knesset legal advisers sharply criticized the bill. For example, Deputy Attorney General Gil Limon submitted to the Knesset committee that the bill releases from reasonableness review those officials who hold the largest executive power, that is creates a “black hole” of executive authority without legal constraints, that it violates separation of powers, that it may be a prelude to attempts to remove other administrative law constraints, and that it may lead to the dismissal of gatekeepers and weaken the civil service.
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The bill currently pending—which may still be watered down before final adoption during the current Knesset session, which ends at the end of this month—appears to follow the broader logic of the judicial overhaul project: allowing the government to operate with fewer legal restraints, by curbing the power of review of the courts and facilitating political appointments to key positions in the administration of law system. The combined effect of a coalition government composed of small parties with extreme political agendas—which large swaths of the Israeli public vehemently oppose—and the weakening of rule-of-law constraints and of mechanisms that have been set in place to protect the general public interest against arbitrary or corrupt use of governmental power could have negative repercussions in Israel, including in facilitating the slicing of future pieces of the “judicial overhaul salami.”
One claim that has been made by the coalition and its supporters in this regard is that the removal of the reasonableness doctrine in relation to decisions by elected officials would not entail significant legal consequences, since other administrative doctrines such as proportionality, conflict of interest, and lack of authority (ultra vires) continue to apply. The retort to this—to which we subscribe—has been, however, that such doctrines only partially overlap with reasonableness (for instance, proportionality assumes harm to a protected individual right) and that these other legal doctrines are often harder to prove in administrative proceedings than reasonableness. This is especially true with regard to petitions against the government submitted directly to the Israeli Supreme Court sitting as the High Court of Justice. These proceedings are usually based only on written documents, without oral testimony or the ability to cross-examine witnesses.
Ultimately, the fight over the reasonableness bill appears to revolve more around questions of principle—should a government be able to pass constitutional amendments that give itself more legal powers and dilute external checks and balances—and less around the merits or demerits of the reasonableness doctrine itself and the potentially intrusive judicial review over decisions by elected officials. It does not help, however, the side of the bill’s proponents that the text currently proposed is sweeping in nature and appears to throw out the metaphorical baby (protection of the public interest and democratic checks and balances) with the bathwater (excessive judicial activism). The fact that even staunch critics of the reasonableness doctrine are criticizing the current draft serves as a powerful warning sign against its passage in the proposed version.
This article was first published in Lawfare.