The Attorney-General’s Office on Monday said it opposes the judicial reform bill because it restricts the unreasonableness doctrine.
While there were issues with the reasonableness standard, which allows the court to engage in judicial review of government administrative decisions that it deems beyond the scope of a responsible authority, the difficulties in application do not justify its cancellation, Deputy Attorney-General Gil Limon said at a session of the Knesset Constitution, Law and Justice Committee.
Labor MK Gilad Kariv said the law was not commonly used, so there was little precedent for its use.
The reform would prevent the use of reasonableness in the High Court of Justice and lower court decisions by elected officials, Limon said, adding that “vaccinating” an entire group from reasonableness was unacceptable.
Constitution, Law and Justice chairman Simcha Rothman (Religious Zionist Party) said if the courts were the final arbiters of what was reasonable, then the High Court would have final word in all administrative action from appointments and Civil Service operations.
Limon said reasonableness prevented the government from implementing policy through methods that were arbitrary.
“It will leave the public exposed to arbitrariness without effective means to deal with it in cases where other judicial grounds will not provide an answer,” he said. “These are hundreds and thousands of governmental decisions, and therefore, parliamentary oversight cannot provide an effective alternative to judicial review.”
Rothman said parliamentary oversight was preferable, and there had been abuses of reasonableness by legal authorities. He proposed augmenting the law to give the power to declare something unreasonable. Those who criticize elected officials should be the public through their representatives.
Limon said the bill, just as the stalled bill to cancel judicial review, would remove important democratic checks and balances without offering alternatives.
Rothman said there was no reason for reasonableness when the test of legality already exists to determine whether a government action is acceptable or not.
One of the issues brought up in the committee was whether the law would extend to local elected authorities. Rothman said this was a complex issue. When it comes to by-laws, which are approved by the interior minister, reasonableness should not apply, he said. When it comes to construction issues, which are approved by unelected officials, they should not be subject to the court of appeals, he added.
Yesh Atid MK Karine Elharrar said local authorities were not beyond reproach, and certain things, such as nepotism, needed to be guarded against by using reasonableness.
Kariv criticized Rothman for what he said would be a shortened legislative process, a “legislative blitz” to bypass procedures by flying abroad and not being present for the debates.
The Brothers in Arms reservists protest group said it had sent tens of thousands of messages out, warning that mass cessation of volunteer reserve duty was still on the table.
Another bill introduced at the Knesset on Monday would seek to reduce the powers of government legal advisers in accordance with the objectives of the judicial reform plan first proposed by Justice Minister Yariv Levin in January.
The private bill submitted by Likud MK Avihai Boaron would make the legal opinions of legal advisers nonbinding and have them appointed by a Knesset committee.
“The bill effectively abolishes legal advice, bypasses it and allows each minister to determine for himself what the legal situation is on each issue,” Jurist Association chairman Yitzhak Gordon said. “The result [would be] anarchy and corruption – the end of proper administration in the service the public.”
The law would strip away protections for civil servants and desynchronize government legal positions, he said.