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Former Supreme Court chief justice Aharon Barak said Sunday that he fully opposes all efforts to eliminate or minimize the “reasonableness” standard, as the coalition intends to do this week in the Knesset.
Barak was pushing back after Prime Minister Benjamin Netanyahu cited the former top judge while defending his hardline coalition’s contentious judicial overhaul.
In a statement, Barak said that “Prime Minister Benjamin Netanyahu is citing me as if I agree or accept the bill to eliminate or minimize the reasonableness standard.”
“To cite me in order to justify the bill is indecent and incorrect,” Barak said.
Clarifying his position on the legislation, Barak said that he is “convinced that the bill, if approved by the Knesset, will seriously harm Israel’s core values as a Jewish and democratic state, and will threaten to undermine the rule of law, good governance, the regime’s morality, and the basic rights of every person in Israel.”
In a speech on Thursday, Netanyahu quoted Barak as saying in 2019: “I’m prepared to eliminate the reasonableness standard; its time may have come.”
Prime Minister Benjamin Netanyahu gives an address from the Prime Minister’s Office in Jerusalem, July 20, 2023. (Amos Ben Gershom/GPO)
Barak has been a vocal opponent of the far-reaching overhaul proposals and has backed the mass demonstrations against them, declaring in January that he was willing to go before a firing squad to stop the measures.
While he is considered one of Israel’s great legal minds and the country’s most influential judge, Barak has been the subject of much criticism due to his activist approach during his 28 years as a Supreme Court justice, particularly for his majority opinion in a 1995 Bank Mizrahi ruling that gave constitutional status to the country’s Basic Laws.
Barak has been repeatedly targeted by Justice Minister Yariv Levin as the instigator of decades of untenable intervention by the top court, which the minister says has relentlessly overruled the country’s elected politicians, thus necessitating the judicial overhaul to radically reduce its power.
In May, pro-overhaul demonstrators rallied outside Barak’s home in response to his past comments about “not being able to find” a suitable Moroccan or Mizrahi candidate to serve on the High Court of Justice. A chief complaint of supporters of the judicial overhaul is what they say is a lack of diversity on the bench.
Protesters outside the home of former Supreme Court president Aharon Barak in Tel Aviv, May 4, 2023. (Avshalom Sassoni/Flash90)
To legitimize the legislation being debated and brought for a vote in the Knesset this week, Netanyahu and other senior government ministers have also cited elements of a lecture by conservative Supreme Court Justice Noam Sohlberg given three years ago and later formulated into a lengthy essay in which he detailed his concerns about the court’s use of reasonableness to gauge policy decisions made by the government.
However, in a rare public statement last week, Sohlberg distanced himself from the legislation, saying that when he had discussed the notion in the past, he did not mean that such restrictions should be imposed via legislation.
“Truth be told, I didn’t think then, three and a half years ago in that lecture, about an amendment through legislation. I thought about a trend that would come about through court rulings,” said Sohlberg, in a statement issued via the court spokesperson, in response to a query by the Israel Hayom newspaper.
Supreme Court Justice Noam Sohlberg at the Supreme Court in Jerusalem, March 27, 2019. (Yonatan Sindel/Flash90)
Following publication of his statement, a clarification issued on Sohlberg’s behalf stated that he had been “responding to questions regarding his article from three and half years ago, and did not take any position regarding the current legislation” although his statement did appear to indicate that he did not wish his name to be associated with the legislation itself.
The “reasonableness bill,” comprising only a tersely worded single paragraph, would amend Basic Law: The Judiciary to completely block courts from evaluating the “reasonableness” of administrative decisions made by the cabinet or its ministers.
Reasonableness is a test established by the courts through which they exercise oversight over decisions they consider reckless, unethical, or incompletely considered. Under the current legislation, they would be able to continue to use the test for bureaucrats or elected officials at the municipal level, but not on ministers or the prime minister.
Supporters of the bill say it is improper for an unelected bench of judges to exercise their judgment over discretionary or policy matters, which are often folded into administrative decisions. Critics say that the broad removal of such scrutiny will reduce the government’s need to go through proper processes when making decisions from the outset. And by removing protection on appointments, it can open the path to ending the independence of democratic gatekeepers.
The measure is a precursor to a more substantive change to the judiciary, with coalition leaders saying the next step is to increase political influence over judicial selection. Coalition leaders are also pushing to give the Knesset a mechanism to override the court if is strikes down legislation, a controversial power that Netanyahu recently told US media he would not pursue, only to face severe backlash from his ultra-Orthodox political partners.
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