PP no 54: Basic Principles Regarding Judicial Review on grounds of Non-Reasonableness

These are difficult days for the State of Israel. The risks to social cohesion, the economy, security, and stability at this time are tremendous. In case of an agreement on cessation of the unilateral legislation and transition to dialogue, and in order to help facilitate such initiatives, we seek to emphasize the vital importance of preserving basic principles in any statutory arrangement regarding judicial review on grounds of non-reasonableness. In this paper, we also respond to the proposal put forward by Arnon Bar-David, Chairman of the Histadrut (Israel’s general workers’ union), and Dubi Amitai, Chairman of the Israeli Business Sector Presidium (as of July 23, 2023). Though we appreciate their efforts, we will explain why we oppose their proposal and believe it does not uphold the abovementioned essential basic principles.

position paper 54

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Position Paper No. 53: Police use of means of riot control to disperse protests

In the protests defending democracy, as well as in other cases, demonstrators sometimes block main roads, and when they do, the police often disperse them. Recently police have begun resorting to drastic means of riot control, including water cannons, according to some reports also “sound cannons” (LRADs: Long Range Acoustic Devices), mounted police, stun grenades, and beating demonstrators with clubs. These measures can cause significant physical harm, and indeed, several protestors have been severely injured in the past few days. Consequently, on July 13th 2023, the Attorney General notified the police that “clear instructions regarding the use of water cannons to disperse protests must be issued, to safeguard public health.”

While the means for riot control are not new, the police’s current practices are exceptional in that they are being used in non-violent demonstrations and against protestors who are not resisting arrest.

In this position paper we examine the legality of this policy, namely using measures for riot control on non-violent protestors.

position paper 53

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Position Paper No 52: Critique of the legislative process concerning the doctrine of reasonableness

position paper 52

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• This paper cautions that the Knesset’s Constitution, Law and Justice Committee has not provided a serious forum for deliberating the proposed amendment concerning the doctrine of reasonableness. The committee’s sessions lack sincere discussion, negotiation, persuasion, learning, or contending with arguments, with professional knowledge, and with relevant information, and are therefore not conducive to proper legislation. It is our impression that the discussions that have taken place in the Committee, along with the enormous amount of professional background materials, preparatory documents, position papers and expert testimony submitted, have had no effect whatsoever on the bill, and that the Chairperson of the Committee has demonstrated no willingness to allow anything said in the debates to affect the formulation or content of the bill.

• In view of the low quality of its legislative process, it is no wonder that the version of the bill concerning the doctrine of reasonableness that was approved by the Committee and that passed a first reading in the Knesset, relying mechanically on the mere votes of the coalition, is in no way fit for its purported aim, and that it promises no legal certainty, no improvement in the quality of the public administration, and no contribution to Israeli democracy and its constituent commitment “to foster the development of the country for the benefit of all its inhabitants”.

• The updated version distributed by the Chairperson of the Committee on July 7, 2023, which explicitly excludes from the purview of the doctrine of reasonableness decisions “in matters of appointments” and decisions “to refrain from exercising a power”, reveals the true purpose of the bill and makes it even less plausible that the bill rests on a reasoned and principled position with respect to reasonableness in administrative law or with respect to the relations between the different branches of government. It is plainly an attempt to wrest immediate political advantage from constitutional legislation – which is a patent abuse of the constituent power.