"…whoever has judicial authority… will not discuss the reasonableness of a decision of the government, of the prime minister or of another minister…" (Amendment to Basic Law: The Judiciary).
It is a remarkable thing that a government passes a law authorizing it to behave unreasonably, as Israel’s government is now doing, and thinks this is reasonable. It is worth considering how ‘reasonableness’ works.
Imagine a public demonstration. The minister - who sacked the police chief to appoint his friend in his stead - orders the police chief to respond firmly because of an imminent ‘danger to public order’. The demonstration is broken up; the demonstrators injured and imprisoned.
The demonstration consisted of five young girls, peacefully displaying placards demanding better school food.
The suppression of this demonstration, if unchallenged, has a chilling effect on all peaceful demonstrators, thus undermining the exercise of this fundamental right. Look for instance at Hong Kong where today a lone individual holding up a blank piece of paper will be arrested for public order offences.
But how does the court handle the minister’s order to the police chief. There was no discrimination; it is within police authority to break up demonstrations; he did not consider irrelevant information. The best and often only tool of control is ‘reasonableness’. If the minister’s fear of a ‘danger to public order’ is irrational, then his decision should be set aside. The chief of police, who showed no independent judgment, should suffer a career limiting court reprimand.
The court thus creates a virtuous circle, encouraging good decision making and promoting good government.
But if the decision is not set aside, the process reverses. The minister’s irrational judgment, and the policeman’s unthinking obedience, are encouraged. A vicious circle promotes bad government. Victims of bad government fail to bring claims because there is no point. Rights are eroded, and bad decision making becomes the norm. The road is open to a failed state.
Yet in our brave new Israel, the policeman will hide behind his minister, who decided that danger to public order existed. Was such a view reasonable? It looks improbable, but the court cannot even ask the question. So the arrests remain valid and the young old girls languish in prison.
All fields of government activity are at risk: zoning; health; traffic control; transport, etc. Remove the judicial tool of ‘reasonableness’ and you buy a ticket to the unrestrained government of Russia, China or Iran.
Some pro-reform arguments have merit. The Israeli court probably applies ‘reasonableness’ too freely, substituting its views for that of the original decision maker. But this can easily be cured.
In the widely followed English legal system a government decision can be set aside only where it is ‘so unreasonable that no reasonable person could have made it’, i.e., it was irrational. This is a far higher hurdle than simply preferring one course over another.
It would be irrational to put a convicted paedophile in charge of education; a mafia drug baron in charge of drug distribution in the health service; a convicted fraudster in charge of finance; or a fox in charge of the hen-house.
Similarly it would be irrational for a government minister to dismiss senior officials merely to replace them with an under-skilled close friend or relative, or to award contracts to other equally under-skilled friends or relatives. However improbable these scenarios, liberal society needs a tool to prevent them. ‘Reasonableness’ is that tool.
The government argues that, even with this tool removed, the courts will retain many other judicial tools. This argument amounts to saying the reforms will make no difference - in which case why pass them? But the argument lacks logic. It is true that the judges will be left with a saw, a drill and a screwdriver - but they will no longer have a hammer. When you need a hammer, a screwdriver falls short. That is why all liberal societies have ‘reasonableness’ as a central tool in their judicial tool-box.
Another argument - that the reforms do not threaten Israel’s democratic architecture - is of course correct. But this is a cheap point. ‘Demokratia’ is shorthand for ‘an open liberal society’. Remove the central tool of restraint on government conduct and ‘open liberal society’ is fatally eroded.
A further argument - that the democratically elected government has the right to do what it wishes, since it has the mandate - is simply wrong. Firstly, the electorate was ignorant of the detail of the judicial reform when it voted. Secondly, winning an election does not authorise majoritarian dictatorship. Fundamental freedoms from abuse, discrimination and unfairness are baked into liberal society.
These values might be protected in a constitution; in basic laws; or by mere convention. They are also protected by checks and balances: a second chamber; a president; and always the courts. But destroy the checks and balances, and liberal society starts to ebb away. The only brake on Israeli government lies with the judiciary. That control might need careful amendment. It should not be disarmed and made toothless.
Dictators start by attacking the independence of the judiciary. Putin in Russia, Xi in China, Orban in Hungary, have all taken this path. Israel should not follow.
The government argument that restraints can be legislated is superficially attractive, but illusory. Legislation is a clumsy and slow process. The world is only now fumbling its way towards legislative restraints for social media, while regulation of AI is still a distant dream. Judges around the world have developed flexible all-purpose tools, such as ‘reasonableness’, to deal with these gaps in legislation.
Pro-reformers identify a real need for judicial reform. Anti-reformers identify real risks in the proposed reforms. Each should recognise and respect the other. Workable solutions, presently blocked by politics and egos, are within our grasp; they should be seized.
Trevor Asserson is a UK litigation lawyer and founder of Israel’s largest international law firm. His views are personal and do not necessarily represent those of his colleagues, or of "Globes".
Published by Globes, Israel business news - en.globes.co.il - on July 24, 2023.
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