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5 Things to Know About Israel’s ‘Reasonableness’ Judicial Reform


1. Less Subjectivity in the Courts

Without a written constitution, Israeli Supreme Court justices are forced to rule on ‘reasonableness,’ basing their outcomes not on established precedents but on what they believe is fair. This has given the court more power than any in the Western world. Going back to the 1980s and 90s, the "reasonableness" concept that crept into the Israeli judicial system began at the local level, moving to the Supreme Court, preventing the government from acting in its democratic role in public appointments, military actions, and domestic policies. One example is that the Israeli Supreme Court found it was unreasonable for one government to attack future Israeli governments by appointing low-level officials but did find it reasonable for a different government to propose a final-status peace deal with the Palestinians. This latest reform seeks to rectify this issue, stopping the high court from being able to interfere with government appointments and decisions on a quick whim because it disagrees with the current governing coalition.

2. Improves Israel's Democracy

Like the United States and other Western nations, the judicial system in Israel has been able to expand its powers and act as a secondary legislative system, circumventing the Israeli Knesset and the Israeli citizenry. Experts say that the judicial reforms will improve the balance of the two branches and defend the rights of different parties and minorities in Israel. With the latest reform passed by the government Monday, experts say this will set parameters between the two branches, improving Israel's government and shaping the country into an American-republic governance system. Yet, judges have not lost their power over appointing new justices and can still hear almost any case, even on a political question where the petitioner has not been hurt. Should the Knesset continue its proposed judiciary reforms, experts say that the Israeli courts could become like America's judicial system, where lawmakers can vote on judicial nominees and act as duly elected lawmakers.

3. Allows Knesset to Function

With the passage of the new reform, the Israeli government has essentially allowed the Knesset to function as a proper legislative body, which is the heart and soul of every democracy. During the 1990s, the Israeli Supreme Court, led by Justice Aharon Barak, led a "constitutional revolution," which resulted in the court system becoming stronger than Israel's parliament. Thus, despite winning elections and debates in public, conservative voters in Israel have constantly hit roadblocks from the Israeli judicial system, which has prevented the legislation from acting in its democratic function. The new reform will allow the Knesset and the governing Israeli coalition to have its democratic say in government appointments, military decisions, and policies of national significance. The new reform also improves the electoral participation of Israel's population, who will have a vested interest in electing lawmakers and politicians just as in Western countries like the US and European nations.

4. Strengthens Political Debate

With the passage of the new law preventing the Israeli Supreme Court from overturning government actions based on its interpretation of said words, the latest reform is a steppingstone to reverse the "judicial revolution" of the 1980s and 1990s, which allowed the Israeli court to claim new vast powers, upending political debate in the Knesset. Since the 1990s, the court has retained dominant power stopping legislation passed by different Israeli governments and blocking administrative actions for every reason except unreasonableness. The newest reform will allow for more political debate in the public sphere and the Israeli lawmaker, allowing for compromise on economic and social issues and creating a vibrant civic populous. At the judicial level, the new law generates democratic and judicial legal debates among the justices, given that they will now have to carefully look at the legislation in question, resulting in a more robust judicial system.

5. Opening for Compromise

Before the vote on the reasonableness test occurred, conservative, moderate, and left-wing Israeli officials did engage in compromise negotiations via Israeli President Herzog, bringing both sides together to reach a solution that would appease the two. Yet, despite the outreach, opponents of the government walked away from any compromise, calling the reforms and this government "fascistic" and "illegitimate." As a result, the coalition voted for the reasonableness test while stating it was still open to compromise on the rest of the judiciary reform. Experts note that compromise will take time; however, there is hope given that before Monday's vote, opposition leaders offered to accede to a "reasonableness" reform in exchange for postponing the larger reforms first proposed by the Netanyahu government, understanding that this change isn't itself a danger. Should the opposition and the current government create concrete solutions to the judiciary, this will alleviate supporters and protesters on the streets and significantly improve a critical aspect of Israel's society.

Related Story: Hijacking the Narrative: Inside Israel’s Domestic Protests

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