Rothman plows ahead with ‘reasonableness’ bill despite criticism over rapid process

The Knesset Constitution, Law and Justice Committee on Sunday wrapped up its deliberations on the government’s controversial bill to limit the ability of the High Court of Justice to review government and ministerial action.

Committee chairman MK Simcha Rothman is seeking to send the bill back to the Knesset plenum for it to be signed into law before the Knesset summer session wraps up at the end of July.

The opposition has until 7 a.m. Monday to file objections, which will be discussed and voted on during the course of the day.

Committee voting on the bill itself will likely only take place on Wednesday, and the legislation will likely be brought for its final Knesset readings next week.

The legislation would ban the courts from invalidating, or even discussing, government and ministerial decisions, including appointments of officials, based on the judicial test of reasonableness, although it would allow for such review over decisions made by professional civil servants.

Numerous opposition MKs denounced Rothman’s management of the legislation in committee during Sunday’s hearing, accusing him of steamrolling the legislative process through improper use of the power of the committee.

Deputy Attorney General Gil Limon, together with legal scholar Prof. Yuval Elbashan, strongly criticized the “blanket” abolition of the use of the reasonableness standard across all forms of government and ministerial decision-making, arguing that the bill would harm the system of checks and balances on executive power and damage the separation of powers.

“Haste is from Satan,” quipped Yesh Atid MK Karin Elharrar in reference to the fact that Rothman had dedicated only four hearings to the bill after its first Knesset reading last week. Changes to a Basic Law, such as this bill is, generally entail far more.

“Democracy isn’t just the majority rule, it’s the rule of law and checks and balances,” she continued, protesting Rothman’s refusal to have legal advisers from numerous government ministries address the committee.

Similarly, Labor MK Gilad Kariv insisted that the committee was not given the chance to comprehensively debate the bill and its ramifications, describing the hearings as “a trick” designed to convince the High Court of Justice — when petitions against the law will be filed — that a substantive debate had been held.

Kariv noted in particular the fact that serious concerns — including over the power of interim governments unrestrained by the reasonableness test, and the effect the bill will have on the government’s ability to fire senior civil servants such as the attorney general — were not debated during the deliberations.

“We will unfortunately likely need to turn to the High Court” as a result of the hasty committee process, Kariv warned.

Yesh Atid MK Vladimir Beliak pointed out that the bill was an amendment to a Basic Law, which has quasi-constitutional status, and was advanced as a committee-sponsored bill and not a government-sponsored bill in order to avoid receiving input from relevant government departments, so as to further expedite the legislative process.

“Is this how a Basic Law is passed in a normal country? Where are you rushing to, MK Rothman?” Beliak demanded.

Likud MK Tali Gotliv rejected the criticism of the law and said the government had to pass the bill so as not to capitulate to its opponents, whom she described as “anarchists” who are harming the country.

“If we don’t pass the reasonableness law then we will be capitulating to extortion and bullying by the left,” she said.

Gotliv also insisted that the judiciary and legal officials needed to be restrained because they have failed to respect the will of the elected branches of government, and that the bill was needed for this purpose.

She said that a ruling last week by the High Court of Justice striking down legislation regarding foreign workers’ welfare benefits proved the need for the reasonableness bill, glossing over the fact that it would apply only to administrative decisions and not to such legislation.

“The court showed us that the court doesn’t respect the executive or the legislature. They [High Court justices] have zero responsibility and left us without any ability to deal with migration,” said Gotliv.

Addressing the committee, Limon, the deputy attorney general, asserted that recent changes to the language of the bill heighten the administrative power of government ministers to an even greater extent than the version passed in the first Knesset reading.

He said the changes also made explicit that the courts could not use the reasonableness standard to review government appointments, and by implication the dismissal of senior civil servants. And he added that the bill would remove the ability of government legal advisers to block extreme ministerial actions.

“Government legal advisers will not be able to fulfill this role [after passage of the legislation], and in the absence of judicial review there will be no brake against making decisions that do not meet, in the extreme, the obligation of reasonableness, meaning decisions that ignore essential considerations or that give excess weight to negligible considerations,” said Limon.

He added that the indiscriminate application of the bill banning judicial review through the reasonableness test of all government and ministerial actions “shatters the accepted rules of the democratic game, [which require the reasonableness test] as part of the checks and balances between the three branches of government.”

The committee also received on Sunday a document compiled by the Justice Ministry that detailed some 1,000 instances between 2018 and 2023 when a government minister or official delegated authority to professional civil servants to take executive action on behalf of a ministry or authority.

Those actions would be immune to judicial review by the reasonableness standard if the legislation were to pass, Avital Sternberg, a Justice Ministry attorney, told the committee.

Rothman rejected the criticism against both the content of the bill and the process in committee.

“We are legislating here what in my eyes is a correction to an injustice of many years,” he said, and insisted that if the opposition wanted a more balanced piece of legislation it should not have walked out of negotiations for a compromise over the government’s judicial overhaul program.

“The allegations of improper procedure are not made in good faith. There have never been words in a Basic Law that have been discussed for so long as in this law,” charged Rothman.

Following the end of the hearing, all six opposition committee members filed a request to Knesset Legal Adviser Sagit Afik asking her to postpone the deadline for the submission of objections until the protocols from all committee hearings on the bill are published, in order to properly formulate their objections.

Currently, protocols for the last five hearings, including those held before the bill’s first Knesset reading, are yet to be published. Afik is yet to respond to the request.