Despite the mass public protests, and the objection of many of Israel’s former senior military and security officials, earlier today (Monday 24 July 2023) the “Unreasonableness amendment” passed the second and third readings in the Knesset and became law.
What is the amendment?
Israel’s administrative law is part of the country’s common law, namely law created over the years through judicial precedent. Much of this law concerns the grounds for judicial review over administrative action, exercised mainly, but not solely, by the Supreme Court, sitting as the High Court of Justice (Bagatz). The first and most basic grounds for review are lack of legal authority for the particular administrative act. However, when there formal legal authority to perform an act or make a decision, such as appointment of a senior official, or more mundanely, granting a licence needed for a procession in the streets, the discretion of the authorised body is subject to review on a number of grounds: that the decision was based on an improper purpose, that illegitimate factors were considered in making the decision; that the decision was discriminatory, or that there was no proper factual foundation for the decision. Even when no such grounds exist the courts may overrule a decision if is manifestly unreasonable. In theory the notion of unreasonableness is used when the decision-maker considered all relevant factors, but the weight assigned to some were so unbalanced as to make the decision manifestly unreasonable. In practice, the “unreasonableness” doctrine has been employed to overrule appointments of ministers and senior public officials who are either being indicted for serious offences of corruption, or have been convicted in the past of serious offences, or when the Court knows that the real reasons for the decision were improper or corrupt.
The decision of the Supreme Court to force PM Yitzchak Rabin to dismiss a minister charged with corruption, and the subsequent decision of the Court to overrule the appointment of the same individual as a minister in PM Netanyahu’s government after he had been convicted of tax offences, was one of the main factors which led to demands to abolish “unreasonableness” as grounds for judicial review of the decisions by the Cabinet and its ministers. The ostensible arguments of the proponents of the law to abolish the “unreasonableness” doctrine is that decisions should remain in the hands of elected politicians.
The law abolishing the “unreasonableness” doctrine of review was passed as an amendment to Israel’s Basic Law: The Judiciary, which defines the jurisdiction of the High Court of Justice. The amendment states that the Court may not consider a petition challenging any decision of the Cabinet or its ministers on the grounds that the decision is unreasonable. This will apply to any decision relating to appointments by the Cabinet or its ministers.
When examined removed from the present context the present amendment may not seem that drastic. But it must be seen as the first part of the government’s plan to weaken the Supreme Court and to free the government from any effective constraint on unbridled use of its powers. The clear intention is to create an authoritarian regime in which the executive branch can do more or less what it likes.
The danger of the new law is not so much in the field of individual rights, as protection of these rights does not rely on the “unreasonableness” doctrine. Rather it is in the field of corruption, both in the use (or rather misuse) of public funds and in the field of government appointments. The biggest immediate threat will be a government decision to dismiss the Attorney General and to replace her with a lawyer who will withdraw the prosecution of Netanyahu on charges of corruption.
The effect of the law cannot be gauged solely by the number of cases in which the Supreme Court will be constrained from intervening in corrupt actions. The law will weaken the power of ministry legal advisers who will be constrained from stopping decisions that are likely to be regarded as manifestly unreasonable.
A number of paths are open. Various groups have already prepared petitions to the Supreme Court challenging the constitutionality of the amendment on various grounds. One of the problems these petitions face is that we are talking about an amendment to a basic law that is regarded as part of Israel’s constitution. The government has taken the line that basic laws are not subject to judicial review. The Court will have to decide whether to accept arguments based on the idea of misuse of constitutional power, or of an unconstitutional constitutional amendment. It may also have to consider whether to interfere on the grounds of flaws in the parliamentary process in enacting the law. Another path is simply to try to circumvent the amendment by challenging corrupt acts or inappropriate appointments on other grounds, such as lack of proportionality, or consideration of improper considerations.
All this is on the legal level. The political struggle must, and will, continue. It is the only real way of preventing another step in the present government’s plan to dismantle Israel’s democratic institutions.
24 July 2023
David Kretzmer, Emeritus Professor of Constitutional Law, Hebrew University of Jerusalem