Why Bibi’s government is so unreasonable about reasonableness

For months, the crisis over the Israeli government’s plans to upend Israel’s judicial system has rocked the country.

In April, a sort of ceasefire was arranged as the Netanyahu government’s plans faltered in the face of massive national unrest. This month, the government revived its proposal, this time with a new game plan. It recognized that force-feeding the entire judicial overhaul all at once was something that the citizens of Israel just couldn’t and wouldn’t swallow.

So, like so many power-grabbing politicians before him, Prime Minister Benjamin Netanyahu divided up the overhaul plan into what he considered bite-size pieces. This not-so-new tactic has been labeled the Salami plan by those who oppose the judicial overhaul scheme.

Netanyahu and his far-right coalition presented the first slice of the salami, a bill that would bar the Israeli courts from using the legal standard of “reasonableness” to strike down government decisions in the realm of policy or appointments.  Some Israeli legal experts say that there is an argument for curtailing the court’s use of the vague standard of reasonableness, which never has been defined under Israeli law.

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The hundreds of thousands of Israelis who have taken to the streets don’t agree. They recognize that without a constitution to form a framework for government boundaries of power, an independent judiciary is the only shield that citizens have. They have been driven to the streets in peaceful protest to prevent the neutering of this vital protection in the delicate democracy of Israel.

As the bill progressed through the legislature, demonstrations in Israel grew in force. The strength of the protest took on new power as Israel’s reserve soldiers entered the fray, not with their guns but by promising to put those guns down. The heads of the IDF reservist protest movement warned that the government is approaching a red line in advancing its judicial overhaul, and that they will refuse to serve if the legislation passes.

Lt. Col. Ron Sharf, one of the protest movement’s founders, declared that if the law is passed, he and thousands more others would stop serving. “With a heavy heart we announce the escalation of the fight, a people’s army only exists in a democracy,” he said. The announcement was followed by more than 1,000 reserve Air Force pilots, navigators and support personnel signing a letter refusing to serve if called up, should the Knesset pass the bill. Many soldiers in intelligence units, medics, and elite infantry squads followed suit.

It didn’t matter. On Monday, July 24, the sixth of Av, just three days before the Tisha B’Av, the fast day commemorating the destruction of the Temple, the Knesset approved the change in Israel’s Basic law to restrict the power of the Supreme Court.

Chaos followed, as massive demonstrations blocked roads and nationwide strikes were organized.

The new law eliminates the Supreme Court’s authority to overturn laws or government actions the Court deems outside the bounds of reasonableness.

As Israel has no constitution and is governed under a parliamentary system, there is no separation of powers between the executive and legislative branches. The judiciary is the primary check against the abuse of power by the sitting government. One of the Court’s tools is to reverse an arbitrary, unfair, or improper action of government that the Court has judged unreasonable.

The root of this doctrine rests with British law and the Rule of Reason. The concept was swept into Israeli law at the time of independence, when Israel absorbed much of British Mandatory law to create a functioning code quickly. Case law around the concept has developed since then.

An example of its application was a 2007 judgment in which the Court ruled that a bill allowing the selective protection of certain classrooms in 24 schools vulnerable to Gaza rocket attacks was unreasonable; all the classrooms, and all the children in them, were equally at risk. Therefore, the only reasonable thing to do was to ensure that all classrooms were fortified.

In another case, the Court found a municipality’s unwillingness to construct a mikvah was unreasonable, given the needs of the municipality’s large Orthodox population. And the most recent example — probably the spark that created this undigestible slice of salami — was when the High Court ruled against seating Aryeh Deri, the Shas party leader on the grounds that his multiple criminal convictions and his unexpired suspended jail sentence made it unreasonable for him to be a government minister. (Shas is a member of the government’s ruling coalition.) Full disclosure: Deri had his jail sentence suspended because he agreed not to serve any longer in any government capacity.

While the legislation that passed on Monday represented only a sliver of the total program, no one has been fooled by the salami tactics. Demonstrators understood that this law’s passage is by no means the end of the government’s efforts to politicize the Supreme Court, gain control, and limit the Court’s authority. The government and key figure of the ruling coalition in the Knesset hid nothing on this point, making clear the bill that passed is the first step in the realization of the whole plan that it had tried to implement as one complete package last April.

What is at stake now is not only the “reasonableness” doctrine and the Court’s authority to restrict government abuse on that basis. The general authority of the Court and the independence of its judges again is at stake.

The extremists who constitute the current governing coalition correctly see the current power of the judiciary as a barrier to a broader program, which includes discrimination against women, gays, and non-Jews. The reasonableness doctrine, andmore broadly, the Israeli court system as it is currently constituted, is a threat to the very type of state the extreme right wants to turn Israel into: an autocratic theocracy.

The elimination of the reasonableness doctrine was a necessary gateway to that broader program.

The demonstrators, the pilots and the elite troops, and the high-tech industrialists all recognize that what is at stake is the very soul of a Jewish democratic Israel.

Dr. Mark Gold of Teaneck holds a Ph.D. in economics from NYU. He is on the executive board of Partners for Progressive Israel, a member organization of the American Zionist Movement and an affiliate of the World Union of Meretz.

Hiam Simon of Englewood is the past chief operating officer of Ameinu, the leading progressive Zionist membership organization in the United States. He lived in Israel for many years, where he was the dean of students at what is now the Alexander Muss High School, and he served in the IDF as a noncommissioned officer in the artillery.