The negotiation teams on the judicial reform from both sides of the aisle report progress on two issues: the reasonability test, and the status of the Attorney General and the legal counselors to government ministries, Reshet Bet Radio reported Wednesday morning. Meanwhile, the composition of the committee to appoint judges remained unresolved.
The reasonability test allows courts to exercise judicial review to invalidate a decision or action of the government because it is “unreasonable,” or “extremely unreasonable,” even if the move in question was done in keeping with the letter of the law. Its use was expanded in the 1990s by the Aharon Barak Supreme Court as part of the increase in the court’s judicial activism. The expansion of the reasonability test has been criticized by advocates of judicial restraint.
The post of the Attorney General in Israel contains an inherent conflict of interest since the same public official serves as the legal counsel to the government as well as the controller of the country’s judicial system, including the state prosecution. It means that the AG both advises the government on the legality of its decisions and orders investigations of the same government should it defy his or her advice.
The legal counselors that are appointed to every government ministry control the actions of the ministers, who are not allowed to refuse their legal advice or they may face prosecution. This is tantamount to your attorney calling the cops on you if you refuse to follow his or her legal counsel.
The reported agreements are expected to extend the life of the negotiations, giving the sides time to get closer on the committee to appoint judges, as well as on the override clause. Regarding the committee, the debate is over excluding representatives of the Bar Association from the committee, as well as whether the justice minister and the coalition should be allowed to dominate the votes. As to the override clause, everyone agrees that the Knesset should have the power to override the court’s annulment of its laws, the question is by what margin of votes.
Benny Gantz’s and Gideon Saar’s National Union have issued a less than enthusiastic response to the report, saying: “We are committed to keeping Israel stable and democratic and we will not compromise on de-politicizing the judicial system. Unfortunately, there is no progress and there will be no agreements until the issue of the committee for the selection of judges is resolved.”
Chairman of the Constitution Committee, MK Simcha Rothman, said Tuesday night that he is “pessimistic about the possibility of reaching agreements.” According to him, “The reform will be advanced in parts according to the decision of the coalition leaders.”
Rothman also said that “the opposition fell in love with the protest while harming the country.”
The talks resumed on Tuesday, after the president’s aides first met separately with the representatives of the coalition and the opposition, and only then assembled the parties for a joint discussion.
As you may recall, the coalition has already submitted to the Knesset plenum a finalized bill that passed its first reading regarding the committee to appoint judges, and should the talks fail, it has the power to pass the bill with its 64-vote majority.