In light of claims from readers as if we are citing the various objections to the legislation (for example, by the university presidents' committee) without citing the reasons of the other side, Nir Lahav wrote an article that brings the claims from the sides of the legislation and the opposing reasons, which show that the supporters at best did not think the issue through before voting
Not long ago I was directed to a video by Professor Talia Einhorn so that I could also see the arguments of the side in favor of the abolition of the reason for reasonableness and in favor of Yariv Levin's plan. Indeed, as I wrote a few days ago In an article about the danger of populism, it is very important to maintain a rational discussion and in order to find out the truth, it is always important to check other sources and arguments opposite to what we think to see if there is something we did not think about or were mistaken about. Sure and sure when we are not experts in the field. That's why I was happy for the opportunity to see the interview with her.
- 1. She presents cases to demonstrate why the probable cause should be eliminated.
- 2. She claims that it is not possible for judges to subjectively decide what is reasonable regarding the functioning of the ministers and the government.
- 3. She claims that if their performance is not reasonable, the tool to influence this will be in the elections and primaries.
- 4. She claims that there is no situation similar to what is happening in Israel in any democracy abroad.
I'm not a legal expert, but there are some puzzling points here. Since the outbreak of the crisis, I have been reading and listening to experts in the field to understand the depth of the legislation, so I have several answers to her claims:
1. She chooses to focus on cases that are convenient for her and ignores other important cases. So just to balance the picture, here are more cases in which the reason for the likelihood was super important:
A. In general, it can be said that the Supreme Court tends to intervene in the decisions of the government, ministers and senior officials only when they are tainted with "extreme unreasonableness". Most of the time it means that it was accepted while ignoring essential considerations or with an extreme imbalance between the various considerations. According to data from the Ministry of Justice and the Legal Advisor to the Constitutional Commission, Attorney Gore Blei, the High Court of Justice uses the reason of reasonableness five times a year on average.
B. During the tenure of the current government, the main appointment that was rejected on the grounds of "extreme implausibility" is of course the appointment of Shas Chairman Aryeh Deri to the Minister of Interior and Health. In the verdict, Supreme Court President Ester Hayut wrote that "this accumulation of convictions leads to my approach to the conclusion that his tenure as a minister in the Israeli government has caused a serious and severe damage to the image and status of the governing authorities in Israel and to the fundamental principles of cleanliness of hands and purity of conduct, to which elected officials are obligated." Therefore, Hayut believed, "it is no longer an appointment that is 'on the border of the realm of reasonableness', but an appointment that clearly crosses this border."
third. Even the first time when Deri was forced to resign from the position of Minister of the Interior, when an indictment was filed against him in 1993 in Yitzhak Rabin's government, the Supreme Court made use of the reason of reasonableness. In the same ruling, it is written that "if a minister serves in the government against whom an indictment has been filed accusing him of taking bribes of hundreds of thousands of shekels and abusing governmental positions in other ways, this will have a far-reaching impact on the image of the government in Israel, its integrity and its fairness. This matter directly affects the question of reasonableness".
This is the "Deri-Panhasi Law", which from that point required ministers and deputy ministers to resign from their positions in the event of an indictment being filed.
Protection of educational institutions in the Gaza Strip
d. In 2007, the President of the Supreme Court at the time, Judge Dorit Beinish, determined that the government's decision not to protect all classrooms in the settlements surrounding Gaza and Sderot exceeded the realm of reasonableness. This follows the petition submitted to the High Court in 2006 by a resident of Kibbutz Kfar Gaza, Eduardo Vosser, demanding that the government complete the protection of classrooms in schools in the Gaza Strip, due to the launching of Palestinian rockets towards Israel. Vosser and the Sderot municipal parents' committee claimed that they are not ready to send their children back to school until the protection of the schools is finished, because this is a risk they are not willing to take. Because in the Gaza Strip, the protected area must be reached in a very short time due to the proximity of the settlements to the place where the rockets were launched.
The panel of judges accepted the petition unanimously and ruled that the classrooms in the schools in the Gaza Strip and Sderot must be fully shielded.
God. Another example comes from the criminal world, when in 1986 the Supreme Court overruled the decision of then Attorney General Yosef Harish not to prosecute the heads of the banks in the "share regulation case" because it was characterized by "extreme improbability" and did not give sufficient weight to the public harm in the conduct of Bank heads. This is an affair that almost destroyed the economy in the early 90s and was considered the "Yom Kippur of the banks". The best stocks in the market, XNUMX% of the stock market, which belonged to the national savings instrument, collapsed in one fell swoop, and the avalanche left investors homeless.
and. Another example is the case of Siglit Moisa, a single mother from Elad who in 2019 had her house cut off due to debt. Moisa petitioned the High Court against the decision. The argument was that she has a child with special needs, Down syndrome and moderate retardation who is forced to sleep at night with a device that helps him breathe. Without it, it is life-threatening. He also needs heart medicine that is kept in the fridge or it will go bad.
Moisa's petition was accepted in 2021, and in the ruling it was determined that the Electricity Authority must hear the claims of the consumers and allow them to prove that they are suffering from an unusual financial situation or financial difficulty combined with a medical condition, as a reason for not disconnecting from the electricity supply.
G. Using the reason of reasonableness, the High Court of Justice also required Kfar Varadim to build a mikveh tahara in the community - after Kfar Varadim resident Yehudit Sela and other residents petitioned that a mikveh tahara be built near their home, even though the majority of the population in the locality is secular. Sela and other mitzvah-observant residents of the local council claimed that in order to immerse themselves in the mikvah they had to travel to a remote settlement, and petitioned the High Court of Justice after the district court in Haifa considered that it should not interfere with the decision of Kfar Varadim not to build a mikvah within its boundaries. The petition was accepted in 2014, and a mikveh was inaugurated in the local council in 2017.
H. Another example concerns the petition against the chief military censor, submitted by journalists Alof Ben and Meir Schnitzer. As part of the petition, for the first time the scope of the censor's authority was subjected to judicial review, after he rejected sections of an article prepared by Ben for the "Ha'ir" newspaper in 1988, in which he criticized the performance of the head of the Mossad at the time, Nahum Admoni. The editor of the Schnitzer newspaper agreed to the exclusion of the sections that could lead to the identification of the head of the Mossad, whose identity at the time was a secret, but opposed the exclusion of the sections that criticized him.
The court accepted the petition. In the ruling of the judges, given unanimously on January 10, 1989, it was determined that the chief military censor is not authorized to disqualify a journalistic report, unless it appears objectively that the publication has a near certainty of actual harm to state security, public peace, or public order.
A balance between the power of the government and the rights of citizens
From all these examples it is clearly seen that the reason of reasonableness is a very important reason that gives power to the citizens against the enormous power of the government.
2. She claims that it is not possible for judges to subjectively decide what is reasonable regarding the functioning of the ministers and the government. This is a claim that is heard a lot by the supporters of the abolition. To my delight, she actually gave a nice answer to the interviewer who claimed that there is no such thing as the person explained. She explained to him that it is a legal term in which the actions performed are compared to the standards of how things are supposed to be done. She explained that there are such standards. For example, if a doctor decides to perform an operation without any medical examination beforehand, this is something that the court will determine as unreasonable. So much for her explanation. Now the question is asked, and it's a shame that the interviewer didn't ask it right away (but I have a feeling that why didn't he ask...), then, why is the situation different with the work of the ministers and the government? Why are there no standards there, in her opinion, for what is reasonable and what is not?
It's puzzling, because there are quite clear standards. First of all, all government decisions should be within the basic values of modern democracy. These values are known And they form the infrastructure of the modern democratic state. These are the values of the right of every person to realize himself as long as there is no harm to another, and from this are derived the rights of individual freedom, freedom of expression, equal opportunities, and the like. From this are also derived the basic principles of maintaining the same freedom of the citizens with the help of the Charter of Individual Rights, with the help of elections every four years, with the help of separation of authorities and the like. So there is definitely an agreed upon general framework regarding what is reasonable and what is extremely unreasonable in a democratic country. Therefore, there is no reason to say that it is okay to use the reason of reasonableness in court in cases of the conduct of doctors, for example, but not in cases of the conduct of the government.
An objective and not subjective test
More than that, Aharon Barak defined in a legal ruling how unreasonableness is examined, and claimed that it is an "objective test" that is "measured according to the standard of the reasonable person". According to him, "the question is not what the administrative authority actually did, but what it should have done." The reasonable person in this context is the reasonable public servant, standing in the place of the public servant who made the decision." It is of course possible to argue about gray cases and how strong the reason of probability should be, but it cannot be said that there are no standards here just like in the case of doctors. Therefore, as in other cases, such as medicine, there is a reason for reasonableness, there should also be a reason for reasonableness regarding the work of the ministers and the government.
I also find it puzzling that she ignores the weakening of democracy in Israel following the cancellation of the reason for reasonableness. Democracy in Israel will weaken and be in danger because the abolition of the reason for reasonableness concentrates a lot of power in the hands of the government and eliminates the ability of the gatekeepers (such as the legal advisors) to criticize and restrain the government. Because they will know that there is a sword waving over their necks and as soon as they do something the government doesn't like, they can be fired immediately and there is no reasonable cause to preserve their independence. That way the government can fire whoever it wants and appoint people as it sees fit. This is a function reserved for kings and dictators and not for democracies. There is a blatant violation of the separation of powers here.
Indeed, the influence of the cause of reasonableness can be felt at many points. One of those intersections is, as mentioned, the matter of appointments, which does not begin and end with meat. For example, a commissioner who wishes to appoint to a senior position in the police a person who has convictions for serious criminal offenses or disciplinary offenses - cannot do so today due to the reason of reasonableness in its current form, since such a decision ignores or gives little weight to the harm that will be caused to the proper administration and public trust. It is important to remember that the current government has only been in existence for a few months, but already its ministers have targeted a number of public servants in very senior positions - including the CEO of the Government Companies Authority Michal Rosenbaum, the chairman of the Israel Post, Michal Vaknin, and the CEO of Israel Railways, Michael Meixner, and of course the legal advisor to the government Waves in Harv-Miara.
Even if the government does not fire any senior public servant, in the absence of the reason for reasonableness, it may completely ignore the position of the professionals in the various ministries. Many laws impose on the government or the ministers the obligation to consult professional bodies, or officials, before making a decision. If the duty to act reasonably disappears from the world - professional positions will lose their importance, professionals will lose their status, and political considerations that are not relevant to the decision itself may receive a decisive, perhaps even exclusive, weight in the government's work on all its branches.
And if an incumbent government does not have to act reasonably, so does a transitional government - something that may remove some of the restrictions that apply to the government's actions during an election period. A significant risk in this context is, of course, appointments that are made during a transitional government, but also, for example, "election economy" that is aimed at increasing the popularity of the government's components - for example, by lowering the prices of supervised products without professional justification.
It is not clear to me how she could have ignored all these essential points. But we will move on to her next claim.
3. She claims that if their performance is not reasonable, the tool to influence this will be in the elections and primaries.
Sounds like a reasonable argument, the problem is that in practice this is not what happens. There are already several examples of countries such as Hungary, Poland, Russia and Turkey that have taken similar steps to weaken the power of the court so that it cannot intervene if the government fires the gatekeepers who are supposed to restrain it, or makes appointments on its behalf, and see what a miracle. Although there are still elections and primaries there, corruption has still jumped and the ruling party has been ruling without interruption and without restraints since befitting a dictatorship. How can it be? If there are elections there, how is it that the government cannot be punished if it acts in an unreasonable manner?
The answer is by appropriating more and more power to the government and the ruling party until democracy is emptied of its content. Just as there are supposed to be elections in Syria and Iran, so too in these countries, there are supposed to be elections, but they no longer reflect the will of the people but the will of the party. According to the experience from these countries, what needs to be done to get such a dictatorship is first of all to weaken the power of the court so that it cannot restrain the decisions of the government nor the legislation of the parliament. So the way is clear to fire the gatekeepers and replace them with puppets on behalf of the party. So it is also possible to dry up the funds that the government gives to various entities and condition the receipt of the money only if these entities support the government (for example, they do this for media entities, so that now only those who praise the government receive budgets). Sounds like very improbable behavior, but that's exactly the point, the court no longer has any power to restrain and monitor the government and force it to change its decisions so that they are reasonable. So it is also possible to harm the purity of the elections by appointing a central election committee on behalf of the ruling party. And whoop, we have reached a situation in Hungary and Poland as an example of a dictatorship. What do they care? They can do anything and the court has no power to restrain them.
Here are several videos that explain the processes that took place in Hungary and Poland and the connection between all the countries where populism took over:
This is a video in which a Polish expert is interviewed who explains how we are witnessing populist regimes rising all over the world and trying to empty democracy in their country of its content. It's amazing to see how everyone uses the same moves that start with weakening the Supreme Court, Then when there are no tools to restrain the government, they make a political takeover of the courts and the media:
Between April 2010 and April 2011, Viktor Orban took over the judicial system in Hungary. Yariv Levin, back in 2017, proposes to implement the method that was successful in Hungary (and also in Poland) - lowering the retirement age of judges.
Here are the takeover steps.
A video about how all over the world there is a similar process for turning democracies into dictatorships and how they cooperate with each other:
After seeing that such situations have already happened nowadays in several countries and even though these are different countries, still, in all of them the processes are similar, it is very strange to me how she still says that the elections are the way to determine what is reasonable and what is not. Sounds like a very unprofessional and irresponsible statement to me. By the way, it is interesting to note that there are good relations between the current government and the Hungarian government. In addition, according to my understanding, Yariv Levin wrote in his books that after making all the changes he proposes, the ruling party will indeed remain in power and not be replaced. Hmm, I wonder what he meant by that?
4. In her last claim, she claims that there is no situation similar to what is happening in Israel in any democracy abroad.
Another very familiar saying. Yariv Levin himself claimed something similar from the stage of the Knesset. This is also a very puzzling statement. To see why, here are facts from a document of the Knesset's Research and Information Center, which compares the approval and judicial review mechanisms for government appointments around the world. The document shows that in the vast majority of the countries under review, there are significant audit procedures for government appointments, which do not exist in Israel. Even in countries where supervision is not done by the courts, there are oversight mechanisms in the parliament - which do not exist in the Knesset. In Canada there is consultation with the cabinet and approval of the parliament, in New Zealand the court has the authority to review appointments, in France there is a division of powers between the government and the president, most positions are done by tender and not as an appointment. Also, the president's appointments are bound by public consultation with the relevant committee in the parliament, and approval by a special majority. And in the US, almost all positions are approved by the Senate, most of them also go through a process in front of Senate committees. The conclusion is that in every democracy in the world there are significant audit procedures on government appointments. Precisely in Israel there are almost no such procedures and therefore Israel relies on the reason of reasonableness. Abolishing the reason of reasonableness will turn Israel into a country where there will be no significant audit procedures on government appointments and this is a serious situation that does not exist in any democratic country!
The factual picture obtained from all this information is very clear. Abolishing the reason for reasonableness endangers democracy in Israel and seems to be the first step to pave the way for further steps like what was done in countries like Hungary, Poland and Russia to give the government almost unlimited power and thus change the regime in Israel from a democratic regime to a dictatorial regime.
The question is, can we take this risk and do nothing?
More of the topic in Hayadan: