Unreasonable? Israel's judicial overhaul dismays environmentalists

Ari Rabinovitch
Thu, September 7, 2023 


Judicial changes would constrain Supreme Court in future

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Ministers exempted from impact of 'unreasonableness clause'

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Environmentalists used clause to hold government to account

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Government says it wants courts out of politics, not neutered

JERUSALEM, Sept 6 (Reuters) - When a forgotten explosives cache blew up in June on an Israeli site earmarked for a beachfront apartment complex, it left a big crater but caused little other damage because the Supreme Court had prevented any building work from ever starting.

The court blocked construction on the site of a former munitions factory over what it saw as shortcomings in an official environmental survey, after petitioners sought a ruling based on a clause that gave Israeli judges power to step in when actions by the government or ministers were deemed unreasonable.

The Supreme Court may not find it so easy to act in future after the Israeli government's judicial overhaul, which has sparked protests at home and criticism from Western allies abroad. Under the changes passed so far, the government and ministers are now exempt from judicial oversight based on the so-called "reasonableness clause".

Advocacy groups say this deprives them of a mechanism they had often used to push for action by the authorities on environment issues, ranging from challenging environmental surveys to cleaning up contaminated drinking-water wells or tackling pollution at the Tel Aviv central bus stop.

"It's a fatal blow to our ability to act on behalf of the public," said Amit Bracha, executive director at Adam Teva V'Din (Israel Union for Environmental Defense), or ATD, a group that joined the petition to block work on the coastal development in Herzliya, near Tel Aviv, where the explosion erupted on June 22.

A parliamentary committee said the blast was caused by three tonnes of explosives that had been buried and forgotten in the decades since the factory was removed.

The prime minister's office and ministries involved in the inquiry said they were not responsible. The government, in its case to the court, said the national planning board that oversaw the survey had sufficient "evidentiary basis" when initially approving the beachfront development plan.

Officials at the national planning board could not immediately be reached for further comment.


CHECK AND BALANCE

Prime Minister Benjamin Netanyahu and his right-wing coalition of nationalist and religiously conservative parties say the judicial overhaul is necessary to prevent political overreach by unelected judges.

Opponents say the changes emasculate the judiciary's role to provide a vital check and balance in Israel's political system, a country with a single parliamentary chamber, a largely ceremonial presidency and no constitution.

"It may be possible for the courts to sort of do acrobatics and find other language and other doctrines to achieve similar results," said ATD Chairman Barry Levenfeld, a partner at Israeli law firm Arnon Tadmor Levy.

But he said "the most appropriate way, is to use the doctrine of reasonableness."

The 15-judge Supreme Court will hear an appeal on Sept. 12 against this amendment.

Activists said the clause was particularly useful for small environmental advocacy groups with limited resources when seeking to challenge the government.

In another case, ATD raised a petition over the government's handling of contaminated drinking-water wells. It was launched before the judicial overhaul and sought a ruling based on the application of the reasonableness clause. The court ordered the government to present a timeline within 90 days to address the issue and said further decisions could follow.

But the clause has also been a lightning rod for political disputes.

In January, the Supreme Court ordered Netanyahu to remove a newly-appointed minister, Aryeh Deri, from government over past tax offences, saying most of the court's judges "determined that this appointment is extremely unreasonable". The court also cited other legal grounds. He was removed the same month.

ENVIRONMENT AGENDA

The government insists it is not trying to prevent the Supreme Court or its judges from oversight of the government's work, but says it simply wants to keep it out of politics.

"The court, on this issue (of the reasonableness clause), will continue to supervise the government's work, to strike down illegal decisions. But the court can't set policy instead of the ministers," Idit Silman, minister of environmental protection, told reporters in August.

But activists say the coalition government, which alongside Netanyahu's right-wing Likud party includes ultra-orthodox parties, has already pushed environment issues down its agenda.

One of the government's first actions was to repeal a tax on single-use plastics, which are particularly widely used by ultra-orthodox Jews whose families are typically large and so they often turn to disposable tableware.

The government, which was sworn into office in December, has also softened clean air regulation, giving energy grid operators extra leeway to burn coal if needed, and has not passed a climate law, which would bring ministries in line with long-term emissions targets, despite pledging to do so within six months.

The prime minister's office and environmental protection minister's office declined to comment for this article.

"On top of all this incompetence and neglect, they cancelled the reasonableness clause, which is a primary and critical tool for the court to be able to protect the environment and protect the public," said Yorai Lahav Hertzanu, an opposition parliament member.

(Reporting by Ari Rabinovitch; Editing by Edmund Blair)