Striking a Balance: The Reasonability Amendment

As a proud liberal Leftist Zionist, I felt contradictory feelings when I heard the Israeli Supreme Court’s decision to strike down the reasonability amendment.
While it’s an understatement to say I’m not a supporter of the current Israeli government, my disapproval extends to the recent reasonability amendment. This amendment, part of a broader legislative package introduced by the Minister of Law Yariv Levine a few months ago, raises legitimate concerns about the government’s motives to undermine the judicial system and checks and balances in Israel. Seemingly, I should have been happy about the Supreme Court’s decision to strike down the amendment. However, as a law student with a keen interest in constitutional law, I am not sure that the 8-7 majority decision was the most just one given the circumstances.

The reasonability standard in Israeli administrative law allows courts to review and overturn executive decisions deemed unreasonable, especially when accompanied by other flaws like extraneous considerations. It’s often applied in cases involving public figure appointments, dismissals, and individual rights. Despite its importance in upholding human rights and proper governance, the doctrine has faced its share of criticism for potentially encroaching on the executive’s authority. Critics argue that the vague definition of “reasonable decision” enables judicial overreach. However, defenders stress the need for balance, considering the executive’s power relative to the legislative branch. While I lean towards supporting the reasonability doctrine, I recognize concerns about judicial intervention, highlighting the need for legislative equilibrium.

The reasonability amendment, a recent addition to the Basic Law – The Judiciary eliminates any court’s ability to overturn (or even discuss) decisions by the government on the grounds of reasonability. Petitioners argued that the amendment should be nullified, due to its alleged contradiction of Israel’s core values – Jewish and democratic. On the other hand, the Government argued that the Court lacks jurisdiction to nullify an amendment to a Basic Law (The Israeli equivalent to a constitution). They emphasized that this is especially true in the present case, as the amendment doesn’t undermine fundamental democratic and Jewish values to the extent that justifies judicial intervention.

In a televised and unprecedented session, Israel’s (full) Supreme Court voted 8-7 to strike down the reasonability amendment. They also voted 13-2 to affirm the Court’s authority to intervene in extreme cases where Basic Laws undermine Israel’s foundational principles. The lopsided vote stems from Basic Laws being subject to the same simple majority process in the Knesset as regular laws.

While I may disagree with the amendment, I struggle to justify the ruling as it undermines Israel’s democratic identity. The decision to strike down a Basic Law is not one to be taken lightly. Basic Laws hold a unique status in Israel, serving as constitutional pillars defining the state’s character. I find it unconvincing that the reasonability amendment crossed the threshold required for the Supreme Court to invalidate a Basic law, especially given Israel’s historical absence of such intervention.

Israel’s Supreme Court uses various doctrines to balance the executive branch. Not all democracies have a reasonability doctrine, and comparing them is complex due to their unique cultures and histories. Some democracies have constitutions, and others, like Israel, don’t. While mechanisms to uphold democracies vary, not all are necessary for a state to be considered democratic. Israel may have weaker mechanisms compared to other states. However, the reasonability doctrine isn’t a fundamental pillar in modern democracy, and its absence wouldn’t undermine Israel’s democratic foundation.

Like many others, I believe this package proposed by the Netanyahu Administration along with its underlying motivations, poses a significant threat to Israel’s democratic foundation. It’s understandable why some view the court’s decision as a defensive move, recognizing the reasonableness amendment as just the initial (“Salami slice”) step in the government’s broader effort to dismantle existing checks and balances. However, I think rejecting the law was counterproductive, inadvertently providing more motivation and public legitimacy for the remaining amendments to be approved. If the court had upheld the basic law while emphasizing its right to intervene in extreme cases and underscoring the need for legislation, it would have been a more effective strategy in safeguarding Israel’s democracy.

The Israeli Supreme Court’s decision emphasizes the necessity of a clear Basic Law outlining the legislative process and distinguishing between regular laws and Basic Laws. Such a law should affirm the court’s authority to strike down laws, and even Basic Laws, but only when the Basic law blatantly undermines Israel’s core values. While it’s unlikely the current government will approve such a law, the court’s decision is directed towards all Israelis. By emphasizing the need for this law and the risks of its absence, public pressure may lead to its approval or, in a more positive outcome, prompt a change in government. This moment presents an opportunity for Israel to strengthen its commitment to democratic values while respecting its diverse identity.