The truth about reasonableness

David Gillis

US commentators are welcome to contribute to Israel's judicial reform debate, but they should be wary about their sources.

Someone must have been telling lies about Israel’s judicial system. In an editorial dated January 20 supporting current moves to curb the power of the Supreme Court, "The Wall Street Journal" states: "Israel’s Supreme Court… strikes down laws that it finds merely ‘unreasonable’"’. On the very same day, in a column lambasting critics of the moves, "Newsweek" opinion editor Josh Hammer wrote: "In recent years, the Court has seen fit to nullify the will of the people-expressed via normal legislation and Basic Laws alike-on such unfathomably flimsy grounds as being ‘extremely unreasonable’ or being ‘too political.’" And now, Larry Summers has told Bloomberg (February 10): "It’s unusual by international standards for judges to be chosen by currently sitting judges; it’s unusual for courts to be able to rule out legislation simply by judging that it’s unreasonable without having a constitution to point to." The impression created is that The Supreme Court of the State of Israel strikes down laws on a whim.

These commentators appear to be confusing two different functions of the judiciary: deciding whether a law passed by the legislative branch, the Knesset, is unconstitutional; and deciding whether a decision made by the executive branch is illegal.

Israel’s Supreme Court does not strike down Knesset legislation on the grounds that it is unreasonable, or even extremely unreasonable (which is not to say that it never will). The theory underlying the court’s power to strike down laws is that where one law conflicts with another law that is defined by the Knesset as a "basic law", then the basic law should prevail. The two basic laws most frequently invoked in this context are the Basic Law: Human Dignity and Liberty, and the Basic Law: Freedom of Occupation, both enacted in 1992. Only the word "frequently" might be misleading. Of over 4,000 laws passed since 1992, the Supreme Court has seen fit to strike down 22. According to an examination by "Globes", that is less than half the number of laws struck down by The Supreme Court of the United States in the same period.

Of course, laws often do interfere with human liberty and/or dignity. Israelis are not free to pursue the occupation of burglary, and if caught doing so they are subject to the indignity of being sent to prison, which negates their liberty. Section 8 of the Basic Law: Human Dignity and Liberty states however: "There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required." This is what the court generally points to when it considers a petition to strike down a law. It weighs the law’s purpose against the violation of rights that it entails. Whether the violation is proportionate is of course a matter of judgment, but that’s what we pay judges for. They have to apply the law, including the Basic Law: Human Dignity and Liberty, to particular cases.

It is true that the issue of the status of the basic laws is at the heart of Israel’s constitutional debate. Should the will of the people that these laws express override the will of the people expressed in subsequent laws? But this is a matter of rights enshrined in law, not an undefined standard of reasonableness.

Reasonableness comes into play in the judiciary’s other supervisory function. It is a test rooted in Israel’s British legal heritage, part of a tradition of judicial review of decisions by the executive branch. Far from thwarting the will of the people, judicial review is meant to ensure that public officials, from the prime minister downwards, do not flout the will of the people by abusing or exceeding their powers under the law. Some feel that the courts’ use of the reasonableness test in this area has gone too far, by examining the substance of decisions rather than the decision-making process; others disagree. At any rate, Israel’s current minister of justice plans to abolish it altogether.

The debates on these issues are fateful for the character of the State of Israel. If US newspapers choose to join them, they have a responsibility to the truth. It may look as though we are dealing with fine distinctions, but the point is that the appearance of the same canard about "reasonableness" in two US publications on the same day suggests that they were copying from the same crib sheet - or should that be fib sheet? - and did not trouble to check the contents. It is disappointing that Summers was similarly inexact, although it should be mentioned that he was actually critical of the government’s reform plans.

The prestige of these publications and of the Harvard professor turns their statements and opinions into arguments in the debate within Israel itself, and perverts it; Prime Minister Benjamin Netanyahu has cited "The Wall Street Journal" editorial as though it should be the end of the discussion. In readers’ responses to "Globes", it is noticeable that many who write in support of the government’s measures echo the claim that the Supreme Court strikes down legislation merely for being unreasonable. But perhaps we should not be surprised at the lack of precision when Netanyahu himself stabs truth in the back. In an interview with CNN’s Jake Tapper on February 1, he kept saying that Israel’s Supreme Court judges are "self-selecting".

The judges have three seats on a nine-member selection committee. Seven votes are required to approve a nomination. This means that, if they vote in unison, the judges have a veto, but so does the ruling coalition, which also has three representatives. This is a long way from judges simply being able to appoint whomever they like, which is the impression that Netanyahu’s description would give an audience unfamiliar with the intricacies of the Israeli system. Tapper was clearly uncomfortable with the direction in which Netanyahu took the discussion, but he was unable to nail this one. And CNN is another outlet that reverberates strongly within Israel itself: the interview reinforces the notion that Israel’s judges appoint themselves without let or hindrance, which also appears in many readers’ responses.

Contrary to what Larry Summers asserts, it is not so unusual for judges to have a say in judicial appointments. Among democratic countries, the level of influence by judges on appointments varies widely. In the UK, for example, there is a greater preponderance of judges on judicial selection committees than in Israel. On the other hand, British judges cannot strike down legislation (although they do review administrative decisions), which goes to show that there is no one-system-fits-all. It’s a complicated debate. Whoever takes part, beware of the lies.

The author is the editor of Globes Online in English.

Published by Globes, Israel business news - - on February 13, 2023.

© Copyright of Globes Publisher Itonut (1983) Ltd., 2023.


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