In an analysis published last week, the Post laid out the factors that could lead to one of three different outcomes regarding the reasonableness standard bill: The bill may pass as is; it may pass in a watered-down version; and it may stall at some point during the legislative process and not pass.
The first outcome now seems highly unlikely. Nearly every professional in the Constitution Committee so far has said that the wording of the bill was too broad. In addition, Tuesday's mass protests were a clear indication that the protest movements plan to oppose the bill as strongly – if not even stronger – than they opposed the judicial selection committee bill back in March. Most importantly, many groups of reservists have already threatened to cease volunteering for reserve duty if the bill passes into law, and more may do the same as the legislation progresses.
Just like in March, Prime Minister Benjamin Netanyahu again will need to hold off the pressure of both the protestors and the hawkish members of his government.
The prime minister may achieve this by inserting changes to the bill so that it ends up close to the version in President Isaac Herzog's People's Directive, which the president published in March,
Herzog's proposal says the following:
1. "The decisions of the government in its plenary in matters of policy and appointments of ministers will not be reviewed by a court under the reasonableness standard alone."
2. "Decisions of ministers in matters of policy shall not be overturned on the grounds of unreasonableness alone unless they are arbitrary or capricious"
3. "Notwithstanding the above, the reasonableness standard will continue to apply, insofar as it applies according to the ruling of the Supreme Court moving to the enactment of the arrangements set forth in this document, as far as the rest of the executive branch."
The negotiating teams at the President's Residence were close to agreeing on a version similar to this one, according to a source. However, the opposition's teams stated from the start that they would not agree to pass the bill independently of the rest of a broad constitutional reform, which would anchor and enhance the judicial system's independence, and serve as a counterbalance to the broader executive powers that would result from this version of the reasonableness standard bill.
The opposition is therefore likely to oppose this version, but its arguments over the bill's potential to introduce corruption would be weaker. In addition, although this version still enables the court to apply the reasonableness standard to "arbitrary or capricious" decisions, it still creates boundaries for the court's ability to apply the standard – and therefore may be acceptable to the hawkish elements in the government, including ministers Yariv Levin, Bezalel Smotrich, Itamar Ben-Gvir and others.
The president's version also could enable Prime Minister Benjamin Netanyahu to reappoint Shas chairman MK Aryeh Deri as a minister. The Supreme Court in January used the reasonableness standard to strike down Deri's initial appointment, due to his numerous criminal convictions.
If the government decides to refashion the bill based on the president's version, there is a fair chance that it will pass into law within two weeks. However, if the government decides to stick with the current version, it is likely to find itself in a situation similar to March – and the protests will make it very difficult to push the bill through.