1.
The entire land is in turmoil. We are a people who attribute great importance to both the written and the spoken word. We might not be prophets, but we are the sons of prophets (see: Talmud, Pesachim 66a). All day long we are subjected to vitriolic texts vying for five minutes of public attention, and yes, they do manage to get what they want: Have you heard what they said? And what is your response to the clip of some or other fool who champions the cause of hatred? Let's go and listen to the next round of horrifying words and then your talkback comments to the curses and calls for hostility, hatred, and division.
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Enough is enough.
It is our responsibility to comfort the people when we address them. To assuage their fears. The general public is not party to the quarrel, and the heads of the coalition should be speaking to it and explaining those issues that are patently clear to some of us, the chief ones being: the link between limiting the reasonableness standard and the wholesale use of terms such as "dictatorship", a "halachic state" and "messianism", or whatever the flavor of the day happens to be, is simply propaganda that is designed to play on our most primal fears. Way back during Passover, I called for a stop to the full legislation process and to reach a process of dialogue. Unfortunately, the dialogue was not conducted in good faith, and the opposition parties believed that they had the power to completely force the coalition to toe their line.
2.
It would thus be a good idea to explain limiting the reasonableness standard by going back to basics: effecting a limitation of this principle does not mean that the courts will not be able to exercise judicial review of administrative discretion. If the government does deviate from the law, and in doing so discriminates or infringes on human rights, in a situation of a conflict of interests or the application of foreign considerations on the part of the government, the courts will continue to intervene just as they have done to this day. That is precisely how things should occur as part of the balance between the three branches of government.
Video: Protesters against the judicial reform near the US Embassy Branch Office / שב״פ, נורית צינס
Limiting the reasonableness standard is designed to enable the government to maintain that level of discretion that the citizens who voted for it have entrusted it with, from a desire to fulfill at least some of the ideas and implement the policies in which they believe. As I have already said, the government's discretion is limited by the law: it must not discriminate or infringe on human rights, it must not appoint an individual who is in a conflict of interest, nor must it make a decision based on foreign considerations, etc. In every such situation, the government will not be able to do anything in contravention of the law, and the rules that have been laid down and not changed.
Having said that, if the government decision complies with all the rules and the requirements of the law, then what remains is essentially the judgment and discretion of the publicly elected official. He is then faced with a legal counsel or judge who disagrees with this discretion. In this case alone, in what way is their opinion any more important or considered? It is for that very reason that this particular individual was elected to the political position he holds: to exercise discretion within the bounds of the law and to implement his policy. That is the basis of the separation of powers: the judiciary cannot place its own judgment or discretion above that of the publicly elected official, without good legal cause.
3.
The public discourse is full of propaganda that tries to tie in the limitation (not the revocation!) of the reasonableness standard with the danger of religious coercion, undermining equality, and whatever other ills they choose to mention. This is all utter nonsense. In the event of undermining freedom of religion or the value of equality – for example, by the non-uniform budgeting of various sections of the population, without indicating any good reason for this – the court will intervene, not because this is "not reasonable", but simply as it is not legal. This is also the case regarding unlawful appointments or exercising foreign considerations – the court will be able to disqualify this, not because it is "not reasonable" but it is not legal. Limiting the reasonableness standard relates only to a situation in which everything is legal, and the dispute is between the discretion of the publicly elected official and that of the jurist. In such a case, the jurist was neither elected nor was he granted any authority by the public to decide on its behalf.
When we erase all the mutual accusations, the name-calling, and the apocalyptic warnings that the end of the world is coming, we remain with a theoretical argument of principles, with the real issue being who are we to trust: should we prefer the democratic choice of the public that has granted authority to the government to manage its affairs, or the judiciary as a "responsible adult" overseeing the government in the words of the renowned, retired judge Elyakim Rubinstein. The democratic answer is that the government needs legal limitations and rules, but not a responsible adult to run it in place of the publicly elected officials. We are sufficiently responsible to act within the bounds of the rules and the degree of judgment and discretion with which we are entrusted, and we are also sufficiently responsible to replace the government should it fail.
4.
Should the government decide to appoint an individual according to predefined rules, and he complies with them – in other words, the appointment is completely legal – even if he is not the best man for the job, this is still within the bounds of the executive's authority (which determines the rules) and the legislature (which then enacts these in law). These rules create uniformity, and a scale (that can be measured in advance) to be used in deciding whether a decision is indeed legal. The problem with the reasonableness standard today is that it is not dependent on fixed rules, but rather the intention of the judge, and this leads to double standards without the possibility of anticipating them, as it is based on the specific discretion and judgment of the judge who by chance happens to be sitting on the bench at that time.
In recent years, the courts have used this amorphous judicial tool on too many occasions. The problem is only exacerbated when it comes to the political establishment. Let's take the case of a transition government, for example. A legal committee decided that the government has full powers and authority until its very last day. As such, the previous government was able to sign the agreement with Lebanon (which, by the way, in my opinion, was nothing short of scandalous), and so indirectly with Hezbollah, along with the transfer of Israeli maritime territory to them, with a promise that Hezbollah would now have a clear interest to maintain peace and quiet along our northern border – a promise that now sounds somewhat ridiculous in light of the current tension there, that appears to be at breaking point.
Having said that, and despite the fact that I did not agree with this decision of the previous government, its decision was indeed a legal one. Why, in the name of reasonableness, would the Attorney General or any random panel of judges decide whether or not this issue is sufficiently justified for a transition government to deal with? And if it was decided that in relation to an agreement with Lebanon – entailing considerable diplomatic, economic, and military implications – just a few days prior to the end of the government's term of office, this was considered to be a reasonable decision, then why in comparison, was the appointment of the head of a religious council four months prior to the elections, not declared to be "unreasonable"?!
Here is an additional case illustrating the danger of double standards that I heard from Dr. Aviad Bakshi: Justice Dorit Beinisch assumed her position during a meeting of the Judicial Selection Committee just prior to the elections. What a surprise it was then, when then Minister of Justice, Tzipi Livni, asked to convene the committee to elect Prof. Ruth Gavison as a judge, that Justice Beinisch determined this to be "unreasonable" and that she should wait for the elections to take place. Judicial review of the Knesset and the government is clearly a necessity, but what currently balances the court? This is the genuine bone of contention.
5.
In only a few days we will enter the Hebrew month of Av. On the ninth of this month, we will mark the day of the destruction of the Temple and Jerusalem and the loss of our independence twice: in 586 BC and in 70 AD. In view of the extremely painful historical memories, it is our duty to do our utmost to tone down the public discourse and to restore it to its relevant sober, impersonal framework. Dispute, however bitter it may be, is no reason for division amongst us. Our texts are replete with animated and hard arguments, but the overall majority of them never ended in division. We have learned something since the destruction of the Second Temple. It is important to remain calm and not to get overly excited at the severely acrimonious words being exchanged. This is a temporary situation that will eventually pass by. We will get through this together. "Comfort, oh comfort My people" (Isiah 40:1).
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