Israeli Reasonableness Law: What you should know

By: Micaela Serber 

09/20/23

Israeli politics are currently under a stir of chaos and change, especially after July 24th when the Israeli Parliament passed legislation that limits the High Court of Israel’s ability to review the “reasonableness” of government decisions. This modification is just a single legislation change that forms part of a much larger debate in Israel over plans to reform the country’s judiciary, which has brought chaos from street protests to uproaring in the Knesset. 

Here are some key terms to know in order to adequately comprehend this piece and its information.

 Glossary:

• Knesset: Israeli Parliament 

1. 1. Is both the House of Representatives and Legislative body. Its functions include: “enacting or amending a constitution or Basic Laws; enacting ordinary legislation; and overseeing the executive branch (the government).”
   2. Is composed of 120 seats or members
      1. Seats are distributed in proportion to each party’s percentage of the total national vote, unless the number of votes a party received falls short of the qualifying threshold (3.25%)
      2. Laws need 61 out of the 120 seats to pass 
      3. Laws can be overturned by the Supreme Court of Israel

1. Benjamin “Bibi” Netanyahu: Current Prime Minister of Israel, leader of governing party, Likud (right-wing, secular political party). First elected in 1996, has been re-elected in 2009, 2021 and 2022. 

• Yair Lapid: Past Prime Minister and former political ally of Netanyahu. Lapid had a falling out with the Prime Minister and is now leader of the Opposition in the Knesset. He has publicly denounced and criticized Netanyahu. 

• Supreme Court of Israel (SCI): Highest court of Israel and the final court of appeals. Composed of 15 justices and 2 registrators. 

• Israel’s Basic Laws: A set of thirteen basic laws, including ones pertaining to the Government, Economy, Human Dignity, Liberty and Judiciary, that are seen as a quasi-constitution. The first basic law is the establishment and recognition of the Knesset.

• Judicial Overhaul Plan: A plan created by Netanyahu’s coalition that includes three main reforms that aim to weaken the Supreme Court’s power. The three main reforms aim to:

1. 1. Limit the SCI’s oversight of government actions and/or policies and end the court’s ability to strike down government legislation on the basis of “reasonability.”
   2. Remove the Supreme Court’s authority to review the legality of Israel’s Basic Laws
   3. Give the governing coalition (led by the Likud party) considerably more decisive powers in appointing judges. Judges are currently chosen by a Judicial Selection Committee made of 3 SCI judges, 2 cabinet ministers, 2 Knesset members, and 2 people from the Israel Bar Association. 

Now that the key terms are defined, get ready for an information dense article explaining what the heck is going on in Israeli politics. Before beginning, I want to point out that I am a StandWithUs Intern dedicated to fighting antisemitism and educating my community about Israel. More information can be found on the links below: 

https://www.standwithus.com/about 

https://www.standwithus.com/israel-justice-system

Okay, let’s get to it: 

• History of the Reforms

In the Israeli checks and balances system, the legislative and executive branches of government are both part of the Knesset, meaning that the duty to review laws and policies is placed onto the judiciary branch, the SCI. This explains the court’s ability to strike down government decisions and appointments on the basis of “reasonability.” The “reasonableness” clause has been part of Israel’s legal system since the founding of the country in 1948, until 2022 when Netanyahu came into the picture in the 2022 election. The plan to reform the judiciary was introduced less than a week after the new Likud-led government was sworn into power, though the plan was not discussed widely. Likud did not publish a platform on any subject, but information regarding the initiative was released through campaign interviews, presentations, slogans and brochures. Some members of the party mentioned the concrete steps of the reform – such as Knesset speaker MK Amir Ohana and Justice Minister Yariv Levin. However, Netanyahu himself did not reveal any details, he just mentioned the need for general judicial reform. Many believe there is a possible ulterior motive as to the reason for these changes, and like any radical political situation, there are always details that may (or may not) be the actual reason behind the changes. Here are the two main suspected factors that may have played a role in the reforms presented: 

1. Aryeh Deri, a Member of the Knesset, leader of the ultra-Orthodox Shas party, and loyal ally to Netanyahu has a long history with Netanyahu and is depending on him to return to the Knesset. Shortly put, even though he was elected, Deri’s future in the Knesset is not guaranteed because of past criminal convictions. After his Party won eleven seats in the Knesset during the 2022 elections, he returned to the Parliament as Minister of Interior, Minister of Health and Deputy Prime Minister. However, on January 18, 2023, the SCI ruled that Deri’s appointment was “extremely unreasonable” due to his past criminal offenses, and therefore, he was not allowed to hold those positions. Deri was dismissed from his post a week after the ruling. Shortly after, the Prime Minister publicly said that the court’s “unfortunate decision” ignored “the will of the people, as shown by the considerable trust that the public placed in the elected representatives who sit in my government.” After Deri was dismissed, Yair Lapid, among others, called on Netanyahu to make an immediate appointment to fill Deri’s duties. In an interview, Lapid said, “What we see is not a government, it’s a circus. Netanyahu is weak, but he needs to appoint a full-time health minister and interior minister today.”. Ultimately, giving the Knesset more power over the judiciary branch and doing away with the “reasonableness clause” could mean the reinstatement of Deri and his posts in the Israeli Knesset. 

1. Apart from Deri’s case, there is a completely different ongoing situation with regards to Bibi Nethanyahu. On May 24th, 2020, Netanyahu’s corruption trial began; it was composed of 333 witnesses from the prosecution’s side and many others from the defense side. Not surprisingly, the trial is still ongoing to this day. The current Prime Minister is charged with fraud, breach of trust, and accepting bribes in three separate court cases involving powerful media moguls and wealthy associates. It’s important to note that the corruption charges have also been at the center of a prolonged political crisis that has forced Israelis to go vote five times in less than four years. After losing power in 2021 to an opposing coalition, Netanyahu returned as prime minister late last year (2022), despite the fact that his trial was ongoing. Currently under Israeli law, the prime minister has no obligation to leave his post while on trial, meaning that his legal problems have not impacted his ability to remain in power. Soon, the court will call upon Yair Lapid to give his testimony, which could be highly detrimental for Netanyahu. Nevertheless, a ruling will be released once all the prosecution and defense witnesses present themselves to the stand, which is estimated to be in approximately two more years. In the case that Bibi is convicted of all charges, he could possibly be sent into political exile, which can potentially be prevented with the implementation of the proposed judicial reforms. Critics state that Netanyahu is committed to weakening the courts and changing the judicial system to open an escape route from his trial, claims he addressed as untrue.

• What happened on July 24th, 2023? 

What happened on this day rocked Jerusalem and Israel as a whole. In summary, the first amendment of the judicial overhaul plan, which aims to limit the court’s ability to veto government decisions if deemed “unreasonable,” was ratified by a 64-to-0 vote. The absence of objection was due to the opposition lawmakers abandoning the session in protest. Justice Minister Yariv Levin, a key constructor of the legislative plan, called the vote a “first step”, but many lawmakers, parliament members and civilians thought the complete opposite. In fact, within a few minutes of the vote, a political watchdog group and the centrist opposition leader stated that they would appeal against the law at the Supreme Court. Thousands took to the streets to protest during the day and especially during the voting, and some voluntary members of the IDF (Israel Defense Forces) went as far as to announce that they would not report for duty if the government continued with the judiciary overhaul plan, warning that Israel’s war-readiness could be at risk. Overall, this decision has caused a lot of commotion and despair, as many believe that Israel’s democracy is at risk. 

• Impact & Protests

The monumental measure taken has not gone unnoticed, and in fact, what occurred as a result of the decision was indeed the opposite. Tens of thousands of people have protested in Jerusalem, Tel Aviv, Beersheba, Haifa, and Netanya, demonstrating the widely negative public response to the legislation. There was even a four day marching route from Tel Aviv to the Knesset, drowning the streets in blue and white flags and limiting the movement of cars along main avenues. The marchers were welcomed in Jerusalem and proceeded to set up camp right outside the Knesset, ready for whatever was to come on Monday, July 24th. Furthermore, more than 100 of the nation’s top security chiefs, including retired commanders, police commissioners, and heads of intelligence agencies, came together to craft, sign and send a letter to Netanyahu condemning the legislation and placing the blame of compromising the country’s military on him. Not only did this motion call the attention of Israel’s leaders, but it also caught the eye of many worldwide powerhouses, one of which being the influential White House of Washington D.C. On Sunday, the day before the vote, US President Joe Biden warned Netanyahu and advised against the progression of the bill. “From the perspective of Israel’s friends in the United States, it looks like the current judicial reform proposal is becoming more divisive, not less,” Biden told Netanyahu, “Given the range of threats and challenges confronting Israel right now, it doesn’t make sense for Israeli leaders to rush this — the focus should be on pulling people together and finding consensus.” Apart from criticism from governments, the law has also received dissenting perspectives from non-governmental organizations, such as the Executive Council of Australian Jewry. Its president, Jullian Segal, said the following “Regardless of one’s views about the merits or otherwise of the various components of the judicial overhaul’ in Israel, the manner in which the removal of the Supreme Court’s ability to apply a “reasonableness test” has been steam-rollered into law is shredding Israel’s social consensus and adversely impacting on Israel’s international reputation.” The worldwide reaction to the legislation is indubitably negative and leans towards condemning and abolishing it, similar to the Israeli citizens who have left their hearts and souls out in the streets. 

• Currently in the Court vs. Knesset Battle 

Right now, the court is determining whether or not they will strike down the already passed reasonableness reform mentioned earlier. This is extremely interesting since the hearing puts the court in a position never seen before, where they are responsible for deciding to accept or deny limitations to their own powers as a court. For the first time ever, all 15 justices were hearing appeals to the law all together, instead of on typical smaller panels. As always, this hearing came with varied opinions and discussions from all over, with some individuals stating that the court is undermining Israel’s democracy and others stating that the current government (Likud Party) is undermining Zionisim and Israel. A ruling for this case will likely be released in a few weeks or months, but what we know for sure is that Netanyahu’s conservative coalition partners have threatened to rebel if the legislation is not passed completely, giving Netanyahu an ultimatum to see the judiciary reforms through. Since January, Israelis have been taking to the streets to protest against the plan, and seeing how things are now, these protests aren’t going to end anytime soon.

Let’s sum it up 

Honestly, I think it’s safe to say that Israel finds itself in a politically challenging situation, especially due to the various layers this problem has. The judicial overhaul plan is much like an onion, where there is new information or new things going on every time you peel away or try to resolve a problem. It’s important to note the complexity of the situation, involving Netanyahu’s history, criminal charges, and his opposing politicians. On the other hand, the Israeli people must be considered, and seeing as things are right now, protests and demonstrations will not cease until the Knesset and the court come to a conclusion, one that must uphold democratic values while addressing the push for a judiciary reform. Right now, we are experiencing history, and all we can do is observe how the situation evolves into a just solution. For now, try to keep up with current Israeli news and always make sure you are taking in true and factual information. If you have reached this far into my article, I want to thank you for your commitment to acquiring knowledge, and encourage you to take a look into my other articles. 

References

About the Supreme Court. (2017). Retrieved October 3, 2023, from https://supreme.court.gov.il/sites/en/Pages/Overview.aspx

Basic Laws. (n.d.). Retrieved October 3, 2023, from https://main.knesset.gov.il/en/activity/pages/basiclaws.aspx#

Cohen, A., & Shane, Y. (2023, September 11). Three Big Cases in Israel’s September to Remember. The Israeli Democracy Institute. https://en.idi.org.il/articles/50877

The Editors of Encyclopaedia Britannica. (n.d.). Yair Lapid. Retrieved October 3, 2023, from https://www.britannica.com/biography/Yair-Lapid

Frankel, J. (2023, September 11). Israel’s judges to hear cases on their own fate as bitter overhaul of judiciary reaches courts. PBS. https://www.pbs.org/newshour/politics/israels-judges-to-hear-cases-on-their-own-fate-as-bitter-overhaul-of-judiciary-reaches-courts

Garrity, K. (2023, July 24). Israel’s judicial overhaul is ‘unfortunate,’ White House says. Politico. https://www.politico.com/news/2023/07/24/israel-judicial-reform-00107844

KELLER-LYNN, C. (2023, January 22). Netanyahu fires Deri ‘with a heavy heart’ after High Court nixes convicted minister. The Times of Israel. https://www.timesofisrael.com/netanyahu-fires-deri-with-a-heavy-heart-after-high-court-nixes-convicted-minister/

Knesset [Parliament]. (n.d.). https://knesset.gov.il/constitution/ConstMGovt.htm#

Lexicon. (n.d.). The Knesset. Retrieved October 3, 2023, from https://m.knesset.gov.il/en/about/lexicon/pages/electoralthreshold.aspx

Marsden, A. (2023, September 12). High Court risks undermining democracy with reasonableness hearing – Likud. The Jerusalem Post, Israel Politics. ​​ https://www.jpost.com/israel-news/politics-and-diplomacy/article-758604

Rabinovitch, A. (2023, July 25). Protests rock Israel as it passes curbs on some Supreme Court powers. Reuters. Retrieved October 3, 2023, from https://www.reuters.com/world/middle-east/israels-netanyahu-discharged-hospital-reuters-witness-says-2023-07-24/#:~:text=JERUSALEM%2C%20July%2024%20(Reuters),convulsing%20the%20country%20for%20months.

Ravid, B. (2023, July 24). What to know about Israel’s contentious judicial overhaul plan. Axios. https://www.axios.com/2023/07/24/israel-judicial-overhaul-reform-explained#

Removal of power of Israeli Supreme Court to apply a “reasonableness” test to government decisions and appointments [Status update]. (2023, July 26). Executive Council of Australian Jewry. Retrieved October 3, 2023, from https://www.ecaj.org.au/removal-of-power-of-israeli-supreme-court-to-apply-a-reasonableness-test-to-government-decisions-and-appointments/

What is Israel’s “reasonableness” legislation and why is it so contentious? (2023, July 23). AJC Global Voice. https://www.ajc.org/news/what-is-israels-reasonableness-legislation-and-why-is-it-so-contentious#:~:text=The%20Israeli%20Knesset%20(Parliament)%20has,reforms%20to%20the%20country%27s%20judiciary.