Prof. Yoav Dotan
Israel Hayom, July 9, 2023
“… the bill currently on the Knesset docket gives blanket exemption to all government decisions, even those made by a single minister. In fact, everything can be defined as a ministerial decision.”
The proposed legislation to trim the scope of the reasonableness standard in court decisions could put me in a bind. On the one hand, I have been one of the clear detractors of the Supreme Court when it comes to its overreach in citing reasonableness as a rationale for its rulings, and I would welcome a scenario in which it would no longer be used so frequently. On the other hand, I am vehemently opposed to the judicial revolution that the government has been pursuing.
Scaling back the reasonableness standard is the first step in a judicial revolution that will also politicize the way judges are confirmed to the bench, something I have long ferociously opposed, because it will destroy the legal system. That is why as a citizen, I must stand against it.
The current language that passed the committee phase and now heads for its first reading in the plenum solves my dilemma. The bill’s current format is absolute and radical; if it takes effect, it will eliminate the reasonableness test altogether, which could deal a major blow to Israelis’ rights – especially when it comes to ordinary people’s ability to defend themselves against arbitrary government decisions. The test, as a means of judicial oversight on the executive branch, is a multifaceted device: it provides a judicial review on the government’s policies and on the decisions made by ministers and bureaucrats.
My issue with the reasonableness standard used by the Supreme Court is in how it has been applied to general policy decisions, such as on fortifying schools in the Gaza area from rockets, and on how to build a metro line in the Tel Aviv area or military operations.
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