Israel from the Inside with Daniel Gordis
Israel from the Inside with Daniel Gordis
"We'd be Hungary, not a liberal democracy"
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"We'd be Hungary, not a liberal democracy"

We hear more from Professor Roznai on his views of the proposed judicial reform, focusing on "the reasonableness test" and the independence of legal advisors. We'll soon present other views, too.
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Professor Yaniv Roznai (Courtesy, Photo Credit: Gilad Kavalerchik)

In the first part of our conversation with Professor Yaniv Roznai, we discussed two of the four components of the proposed Judicial Reform: (1) the selection of judges in all of Israel’s courts, not just the Supreme Court, and (2) the “override clause,” or Judicial Review. This part of our conversation was posted on Monday and made available to all subscribers.

In Israel, even the names that one uses for events and ideas can be controversial. Is it “Judea and Samaria” or “the West Bank?”? Are the lands “liberated” or “occupied”? Was 1948 a “War of Independence” or “the Nakba”? The same is true these days with the government’s proposals regarding the judiciary. Are they “judicial reforms” or is this a “judicial revolution”? Depends on who you ask.

Professor Yaniv Roznai offers us a very orderly review of the very important changes that the government proposes. He is, of course, very much on one side of this debate, and there are smart and knowledgeable people on the other side, too.

In our standard “Israel from the Inside” style, we will be presenting those, as well.

This week, we present the second half of Professor Roznai’s analysis of the government’s proposal. On Monday, which happens to be Tu B’shvat, we will step back into history for a moment and share a momentous day in Israeli history that was specifically timed for Tu B’shvat, and we’ll discuss why that was. And then, also on Monday, we will present a translation of one of the speeches given at last Saturday night’s Tel Aviv rally. The English press reports on the numbers present and at times, even mentions who spoke. But to get a deeper sense of the pulse inside Israel, which is what Israel from the Inside is all about, one needs to know what was said. So we will share a translation of that speech on Monday.

And then we’ll move to other topics, including views from the other side of the judicial debate.

In today’s episode, we discuss the next two components of the Reform: (3) the “reasonableness test,” which the Reform proposes to abolish; we look at its history, its role, and how it was used more than once with Aryeh Deri. Then we discuss (4) the proposal that ministers be allowed to appoint their own legal advisors, instead of the current system which Roznai describes. This change, says Roznai, is in many respects the most important of all, even though it’s gotten less press. He explains why.

Finally, we discuss two additional matters: (5) the much ballyhooed suggestion that the Attorney General has the authority to remove the Prime Minister as being unfit. Is that true? Is it only partially true? Could it happen now? And then, the biggest question of all: (6) if the proposed changes pass, is Israel still a democracy?

The link at the top of this page will take you to the recording of the second episode, in which we cover components (3), (4), (5) and (6).

The transcript is below (just scroll down a bit) for those who prefer to read.


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Impossible Takes Longer, which addresses some of the above themes, will be published this April. It’s available now for pre-order on Amazon and Barnes & Noble.

So now we talked in the last part about the first two proposed changes, the committee that would appoint judges, and we talked about the override clause. Now let's go to the third change, this reasonable test. What is this reasonable test? What do they want to change about it? Where does it come from? What other countries have it? Teach us a little bit about reasonableness.

Okay, reasonableness is a doctrine in administrative judicial review that basically says that all administrative organs, so this basically means the executive, not just the government, the government broadly defined, even municipalities, regulatory agencies, et cetera, they all must act in a reasonable manner. Now, what does that mean? That means that they have to consider all the reasonable considerations and that they have given them proper weight.

Where does this come from?

It comes from the UK.

The UK has this?

Yes.

And we got it from the mandate?

What we got originally from the mandate, we got extreme reasonableness that was applied. But this reasonableness was only later developed in the 1970s and 1980s in the common law world and also in Israel in the 1980s. And I want to give one example. Assume that I live in Tel Aviv, that now the municipality of Tel Aviv decides to put all its trash cans near my building simply because there's enough space there. And they have considered only the matter of space, only the functional element. But they have not considered, and we have the reports, we know what they dealt with, what they heard, they have not considered the implications to the environment, the implications to the health and the inconvenience to the people who live in my building. I can go to the court and say this decision is unreasonable. And the court will say, okay, if you haven't considered all the proper considerations and you haven't given them proper weight, then this is indeed unreasonable. And we'll tell them, go back to the drawing room and reconsider this. Now, it is true that prima facie this gives the Court the ability to override basically all decisions of the administrative agency.

But this is in theory, in reality, the court gives extremely wide discretion when considering the reasonableness doctrine. And I can hardly find cases that decisions were invalid only because of reasonableness or unreasonableness. Now, if we look at it empirically, for example, out of thousands of challenges that were brought to the Court against the government in the last few years, I think the Court intervened in about eight or 9% of them. And even that out of the eight or 9%, it's not totally invalidating the decisions. Usually, it's returning it to reconsideration or something like that. This is nothing. So, the abolishment of the reasonableness doctrine would basically mean that the government will be able to do anything at once without even trying to explain or give justification to the decision. And this is the problem, because now when they know that there is this sort of doctrine that's called reasonableness, they need to consider the decision well before they take it. They need to justify it to the people. They need to justify to the Court. And this is crucial. So just imagine the long-term implications in the administrative agencies and within the governmental departments if there will not be such a doctrine in administrative review.

This is really important. Now, I think what the what the politicians really care about is about political appointments… like in the Deri case. The reasonableness doctrine in political appointments actually came about in the early 1990s in the first Deri case, when Rabin appointed him as a minister. But there was a serious criminal indictment coming on corruption. And the Court said, look, you as a Prime Minister, you have the authority to remove him from office. And it would be extremely unreasonable not to do so when he is now being indicted for criminal charges of corruption. And this is what happened.

Rabin wanted to appoint him, right?

Yes, Rabin appointed him. Rabin appointed him as a minister. And they said, but once he's indicted, you need to remove him from office. So, this is a judicial impeachment, in a way.

Right. But my point only is for the listeners to understand, just historically, that this was an instance in which the reasonable clause was used against, quote unquote, a left leaning Prime Minister, not against a right leaning prime minister.

Exactly. And during a peace process.

During a peace process which meant, if I'm not mistaken, that in the end Oslo was approved without a majority of the Knesset

But supported from the outside.

Right. We have to come back to that in a different episode and explain how that whole thing happened. But it's just an important historical thing to see that reasonableness was used both against the left and against the right, ironically, in both cases with Deri. But he's the gift that keeps on giving.

The Court doesn't apply it in a political manner. Let me give you an example from this year. The former Minister of Finance, Lieberman decided to cut the governmental budget to the kids of avrahim.

Haredi kids in yeshivot.

The Haredi kids in yeshivot in a really small kindergarten. I don't remember the age exactly. Nursery school. And the court said, no, you cannot stop the budget in the middle of the year. This would be unreasonable. This would extremely harm those kids and their parents. You can decide whether to do it, for example, for next year, but not to stop it in the current year. So, this is one example. So, the Court applied this doctrine in favor of the orthodox, the religious orthodox.

Now, again, for somebody like me, who's not at all schooled in law, the judicial review and the reasonableness thing are two totally separate ideas, right? In other words, because Yariv Levin would say, just because I've gotten rid of judicial review de facto, essentially, effectively, the reasonableness clause would still allow the Court a tremendous amount of latitude. So, this is a different avenue that has to be changed in order to make sure that the Court can't use a reasonableness and run about judicial review. Reasonableness and judicial review are really two very different actions of the Court, right?

Yes. But we need to look at it in an accumulative manner because look what they're doing. They're saying, okay, we will select the judges. But if you select the judges, why are you so worried about reasonableness? So, they're going on all ends.

It’s a full court press, as we would say in basketball.

We will control the judges, but also limit the Court's authority to review either laws or administrative acts. So altogether accumulatively, this is really dramatic.

Okay, so now reasonableness, by the way, only applies to administrative matters. It doesn't apply to reviewing laws?

It doesn't apply to review legislation. I've read the op-ed of The Wall Street Journal a few days ago, and I was astonished because the opening of the op-ed said, only in Israel the court can invalidate laws for being unreasonable.

But that's not true.

Now, I've been teaching Israeli constitutional law for 15 years. Never in my life I have seen one judgment of the Court where the Court invalidates the law for being unreasonable.

Does it theoretically have that right?

No, of course not. They only invalidate laws if they contradict the basic laws.

Which is a judicial review issue not reasonableness.

It is judicial review. But the standard of review is that if the violation, for example, is disproportionate. So of course, there are similarities between disproportionality and reasons, but it is not the same thing.

Okay, the op ed that you mentioned in The Wall Street Journal is a fascinating issue all unto itself. How that op-ed got to be and who wrote it and where it comes from and why The Wall Street Journal chose out of the blue to make these comments about a foreign country system. But that's another concept. That's another conversation. Okay, so we've talked about the reasonableness issue, and the last one that we have to talk about of the four is this notion of allowing ministers to appoint their own legal advisors as opposed to the current situation. So, tell us what the current situation is what the proposed situation is and why they want to make the change. And again, what's legitimate about the proposed change? What's illegitimate about the proposed change if anything?

So, currently, every governmental department has a legal advisor. Professionally, he or she are subordinated to the attorney general…

Not to the minister?

Well, I mean, administratively, they are subordinated to the CEO of the department, but professionally, they are subordinated to the attorney general. So, if they want to consult something professional, they would go to the Attorney General's office.

So, in other words, if I'm the Minister of Housing, and I have some question about whether I can do X, Y, or Z, and I have a legal advisor in the department, that legal advisor is subordinate not to me, technically right, but to the Attorney General.

Yes. And he is selected by an independent committee. The CEO of the department is part of that committee, but it's an independent committee because the idea is for him or her to be independent in their advisory opinions.

Okay. So, if I'm a housing minister and I have this legal advisor, I did not appoint that legal advisor. It was appointed by a committee which included the Director General, I guess, of my department. That CEO as you are saying, but I didn't appoint that person, and I'm the housing minister. I have some idea for a project that I want to do. It's complicated in some way. My legal advisor, who's now in this department but supported the Attorney General, can say to me, Mr. Housing Minister, what you're proposing to do here is actually not acceptable. Now, in today's system, right now, in January 2023, do I have to follow the rulings of the legal advisor?

Yes.

So, my freedom as a minister in the government is limited to a certain extent by the attorney general's office, the trickle-down attorney general's office in the form of this legal advisor, right?

Well, it's a bit more complicated than that. So, if you want to push to a certain policy and the legal advisor will tell you, dear Minister, this is illegal or this is extremely unreasonable, then assuming you do not agree with it, you think, no, I actually think it's legal, or what's the problem? You can you have this kind of, let's say, appeal or quasi appeal mechanism to the attorney general. Eventually, the attorney general will decide. And if the attorney general says that this is illegal, that's it. That's it. It's binding. And what does it mean, that it's binding? It's binding upon the government. The government can decide to go forward with it, but then the attorney general will not defend it in the court.

And so, if anybody appeals to the Court…

Then the government will be able to get private lawyers to do the defense for them. But it's a big signal once the attorney general doesn't agree to defend this in the court.

Now, what's the proposed change?

The change is simple. That the ministers will select their own lawyers, their own legal advisors.

And they will or will not be subordinate to the attorney general?

It's not exactly clear how exactly this will work, but the way I understand is that they will be appointed by the minister, and the minister will not be bound by their decisions.

So, it's advisory more than…

You are legal advisors-- advise. And anyway, the government will be able to take any time, private litigation to defend its decisions. Now, just imagine what will happen. And now we need to remember, the minister is a political person. The CEO is a political person that comes with the minister, and now they have also the legal advisor to be a political appointment. This will undermine the quality of the legal advisors that will come. This will undermine the entire legal profession in the public sector…Because who would want to go to this kind of system where you know that anyway, you cannot be promoted to be a legal advisor because it's all about politics. And so, this will undermine the quality of people who go to the public sector, and this will increase corruption, and to my mind, will totally undermine the rule of law. This is one of the worst parts of this so-called reform.

So even though it's the last one that we're talking about it, and it might seem a little bit less central than judicial review, which sounds very big, or a appointment of Supreme Court justices, which sounds like a huge issue. You're saying, actually, that the neutering, so to speak, of the power of these legal advisors is actually maybe even the critical piece of this judicial reform.

Yes. And again, we need to remember that this is again against the backdrop of the Israeli very weak system of checks and balances. If we had other strong institutions who can check the government, it's one thing, but we don't. Even our Knesset look, the Knesset doesn't only enact laws. It also supposed to supervise the government. But we have 120 Knesset members. This is extremely small. In New Zealand with 5 million population, they also have 120. So, okay, it was okay for January 1949 when the Knesset was established, but not for 2023. Now it's a very small number. Out of the 120, take 30 or 35 ministers and vice ministers or part of the government, take the speaker of the Knesset and his vices. Take the Committees, the chairs of the Committees. We have about twelve committees in the Knesset. Again, it's a very big number of committees. We are left with about 70- 74 Knesset members who need to run between the Committees. Everyone has like three or four committees. There is no proper and serious, any parliamentary supervision on the government. The only thing we have is the Court and the legal advisory. So at least don't touch them.

Okay, two quick questions before we conclude and I'm so grateful for all your time. I want to do a kind of a 30,000-foot look here. I mean, you are a professor of constitutional law. You know this system inside out. And we started off by saying at the beginning of our first conversation that there are people who say that if this reform goes through, then for all intents and purposes, this just isn't really a functioning Western democracy anymore. I read it. I see it. I'm not a lawyer. I don't know whether that's hyperbole, whether that's right, whether that's wrong, whether it's a little bit too strong, but whatever. What's the situation? If this goes through unchecked, there may be compromises. We understand that. And I think that's what some people are pushing for. I think most people assume they can't block it entirely, but they're hoping to create some sort of deliberative process which might water some of it down. But let's just assume for a second that it goes through the way Minister of Justice Yariv Levin has proposed it. Is Israel a democracy at that point?

If the reform passes as it is, without any changes, Israel in the future will no longer be a democracy.

And this is not crying wolf. We see what happened in Hungary when the Fidesz Party got the majority and did precisely the same things. They are no longer considered a liberal democracy. Now, I'm unaware of any democratic country in the world with such reforms. I'm unaware. And the reason that I'm here is speaking with you, and the reason that we, hundreds of law professors have joined forces to explain to the public what's going on and to join protests and the reason why former Supreme Court judges speak in protest and in conferences. This is unbelievable. This is because we are all terrified about the future of Israeli democracy. If this passes as it is, I'm afraid in the near future, Israel will no longer be a liberal democracy.

That is a little sobering. Last question. There's discussion here and there of this wild card that the attorney general has the right to say that the prime minister has to step aside because he is unfit, conflict of interest, whatever, to form that role. You're seeing it raised a little bit, then she denied no, I'm not even thinking about such a thing. People on the right say, oh, if she did that that is basically a coup d’état because he was elected. This one woman can't whatever. What's the legal story here? Just so our listeners can understand the next time they see this in the newspaper, whether the English newspaper or the Hebrew newspaper, what's the deal here?

So, it's kind of complicated. So, in our basic law, the government, there is this provision that says that if the prime minister is unfit to conduct his role, then there will be someone who will replace him. His vice. Okay, the vice prime minister will step into replace him. But there is no definition of what does it mean to be unfit? There is no definition. We know in the past it was only applied once in the case of Ariel Sharon, but this was on medical grounds. He had a stroke. He couldn't function. When Olmert was Prime Minister, there was a challenge that was submitted to the Supreme Court to declare him as unfit because there were criminal investigations against him. The court did not accept it. But the judges did say that the Attorney General has the authority to declare unfitness even on criminal grounds. Now, once we have this, there is a possibility, a theoretical possibility, that the Attorney General can apply if those, let's say, assuming there is a strong conflict of interest where the Prime Minister we know is now under a criminal trial to declare him as a temporary unfit. Now, realistically, will it happen? I don't think there are big chances. It's a possibility, but we need to understand that I don't agree with the notion of a coup d’état because we are in a parliamentary system. If Netanyahu is declared as, let's say, temporary unfit, it only means that his vice will replace him. The government remains the same. Okay? It's not undermining the election.

We don't go to elections.

No elections. So, we need to put that into consideration. But still, this will be an earthquake, without a doubt.

This is all fascinating, very illuminating, very complicated, but also very important. We have had the pleasure of speaking with Yaniv Roznai, associate professor and vice dean at the Harry Radzyner Law School at Reichman University. Professor Roznai, thank you so much for taking so much time to explain to us really what's at stake here, because a tremendous amount is at stake. And whatever our positions on it, we really do need to understand the building blocks of this proposed reform. Thanks to you, we understand it much better than we did before. I look forward to our next conversation.

Thank you so much.


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Music credits: Medieval poem by Rabbi Shlomo Ibn Gvirol. Melody and performance by Shaked Jehuda and Eyal Gesundheit. Production by Eyal Gesundheit. To view a video of their performance, see this YouTube:


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