The reason for reasonableness: A doctrine at the heart of the overhaul explained
Proponents of limiting the courts’ use of the ‘reasonableness’ measure say it has hitherto enabled rule by judiciary; opponents say it’s a vital bulwark against government abuse
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
Having decided to back away, for the Knesset’s summer session at least, from many of the most extreme aspects of its judicial overhaul program, the government is currently seeking to pass legislation addressing one weighty aspect of Israel’s legal landscape: the use of the judicial tool of reasonableness.
This tool, at its core, allows the courts to strike down government and administrative decisions seen as having not taken into account all the relevant considerations of a particular issue, or not given the correct weight to those considerations — even if they do not violate any particular law or contradict other administrative rulings.
Conservative jurists and organizations, along with parts of the right-wing political camp, have long fulminated against the use of this tool, arguing that it gives too broad a scope to the judicial branch to intervene in decisions made by elected officials, and essentially substitutes the judgment of unelected judges for that of the government.
And they insist that the use of the reasonableness doctrine to review the appointment of ministers and other senior civil servants trespasses onto what should be an entirely political process.
But opponents to the government’s proposal to greatly restrict the use of reasonableness by the courts argue that the doctrine is crucial in helping protect rights that are not specifically enumerated in Israeli law, and that the government bill would therefore hamper the courts’ ability to defend and protect those rights.
As for government appointments, ensuring that the court can overturn the selection of egregiously unfit officials by invoking “reasonableness” is a critical tool for preventing corruption and malfeasance, and preventing the capricious dismissal of key civil servants is similarly crucial to upholding the rule of law, opponents of the legislation argue.
Uses of the reasonableness doctrine
The reasonableness doctrine has been used by the High Court of Justice to rule in favor of petitioners on numerous occasions, sometimes involving high-profile cases or matters of life and death.
A famous example is a decision from 2007, which deemed as unreasonable the government’s decision to fortify only some classrooms against rocket attacks in 24 schools in the Gaza border region. The justices highlighted the large number of children who were exposed to rocket fire and the fact that it posed a severe and daily threat to their lives. They thus rejected the government’s position and ordered it to fortify every classroom in those schools.
Another well-known use of the reasonableness doctrine was a High Court decision in 2014 that found that the Kfar Vradim municipal council’s decision not to build a mikveh, or ritual bath, in the town was unreasonable, bearing in mind the needs of the local religious population and the circumstances of the request, and ordered the council to construct such a facility.
And in a third instance, in January this year, the court ordered Prime Minister Benjamin Netanyahu to dismiss Shas leader Aryeh Deri from his cabinet posts as health and interior minister on the grounds that his recent criminal conviction for tax offenses, and a resultant suspended jail sentence which had yet to expire, made his appointment “unreasonable in the extreme.”
The government’s current bill would prohibit the courts from using the reasonableness doctrine to review decisions made by the cabinet, government ministers and unspecified “other elected officials, as determined by law,” but would continue to allow the use of the doctrine for decisions made by professional civil servants in government ministries and agencies.
It was approved in the Knesset Constitution, Law and Justice Committee on Tuesday for its first reading on the Knesset floor, and will likely be brought to a vote there on Monday.
The second and third readings — needed to pass the bill into law — could be scheduled in a matter of days after that.
The bill, drawn up by committee chairman MK Simcha Rothman of the Religious Zionism party, has drawn heavy criticism not only from the opposition but from some conservative jurists as well.
Even Netanyahu has expressed reservations about some aspects of the bill, and reportedly ordered Rothman to change it in order to ensure that the decisions of mayors remain subject to judicial review through reasonableness.
Rothman has not, however, changed the current draft of the bill that will go to the Knesset plenum on Monday. Speaking to reporters, he argued that the “elected officials” who are to be included in the terms of the reasonableness bill have yet to be determined.
Judges shouldn’t be governing: The case against reasonableness
Yonatan Green, who serves as the executive director of the conservative Israel Law & Liberty Forum but was speaking in a private capacity, notes that the reasonableness doctrine, formally known as “unreasonableness,” derives from the Wednesbury unreasonableness principle in English common law.
Crucially, he says, the use of the doctrine was designed for situations in which a decision is “extremely unreasonable and something completely outrageous which no reasonable administrative body would take.”
Meaning, that even if the letter of the law permits the decision under review, it would be clear that the law never actually intended for “such an outrageous use” of that authority.
This is not how the doctrine has been used by the High Court of Justice in Israel, Green contends.
“The Israeli unreasonableness doctrine since the 1980s has discarded the extreme aspect. The High Court has discarded the requirement that a decision be completely extreme and outrageous, and the court will now simply replace the government in its decision-making process, using the excuse of an incredibly suggestive and malleable concept of unreasonableness,” he continued.
Green says the fundamental objection to the reasonableness doctrine is that it is not a legal standard. Unlike in a case decided by another legal doctrine where a jurist could predict the outcome by looking at existing law, the outcome of a case where a court determines if a government action was reasonable or not comes down to “a judge saying what he would have done if he was in that position” of making the decision.
He continued: “The court is retroactively exercising government power by deciding for a government authority what it should have done. It is telling the government whether its policy is good or bad, desirable or undesirable.”
Green and others argue that there are numerous other judicial doctrines in administrative law that the courts can and do use to provide protection from arbitrary and capricious government decisions, such as proportionality, the prohibition on discrimination, conflict of interests, extraneous considerations, bias, lack of good faith and others.
These provide adequate protection and will still be available for use by the courts, even if the use of reasonableness is restricted.
Asked about the Gaza border region schools case, Green maintains that the government’s decision should not have been overturned by the court, since the decision was the government’s to make, presumably based on a series of factors including the best allocation of state resources.
“In a world of different strategic considerations, the government may have had reason not to rocket-proof all the classrooms,” he said.
“Whether you like a judicial outcome is a bad test for whether the decision was appropriate,” he added.
Green also contends that deeply controversial government decisions and policies, such as the Gaza border schools one, can be reversed by governments themselves when they realize the depth of feeling against the policy, something which is part of the political process.
As for the Kfar Vradim ruling, Green argues that it is not the place of the court to replace the decision-making process of the local municipal authority with its own judgment.
“That’s what you have local politics and institutions for. That’s what you want to happen, to have local communities figure it out for themselves,” he said.
“The decision in Kfar Vradim will always have the stain of a judicially imposed order which has no basis in law,” he continues, arguing that such decisions have damaged the courts’ public image.
“This kind of decision is about values, about policy preferences, not questions of law, and it completely undermines public faith in the courts.
“There is no law that says all local authorities have to have a mikveh. If people don’t like the decision of the local authority then there are a number of options open: they could lobby for law that every locality has to have a mikveh, run for a position on the local council to pressure the authority, or move to another town.”
As for the protection of civil rights enabled by use of the reasonableness doctrine, Green says it is “patently untrue” that the High Court will be unable to defend rights without this tool, insisting that “statutory rights, the right to dignity, privacy, and many others are all protected” without it, and that other judicial tools such as proportionality would still protect such rights.
“If reasonableness would disappear today it would have zero effect on the rights protected by the courts.”
Guarding against capricious government action: The case for reasonableness
Prof. Adam Shinar, an expert in constitutional law at Reichman University, dissents sharply from this perspective.
“There is no letter of the law that compels the government to act with equality. Equality was created by judicial decisions,” argues Shinar.
On the Kfar Vradim case, Shinar objects to the idea that there were other reasonable alternatives for the town’s religious residents, and notes the circumstances of the request for the mikveh meant the municipal council’s decision was especially egregious.
In that case, funding for the mikve had been secured by the Religious Services Ministry and there was a vacant lot in the town that was appropriate for the facility.
“The court didn’t say there was an inherent right to a mikveh. What it said was that since there was a demand for a mikveh, there was no mikveh close by, there was a vacant lot, and the government had promised to fund it, the municipal authority’s argument was not convincing,” said Shinar.
He added that the court also likely believed Kfar Vradim’s decision was based on animus towards religious people but was unable to prove that the decision was discriminatory, and so it used the reasonableness doctrine instead.
A more recent example came earlier this year when Defense Minister Yoav Gallant refused to grant several dozen Palestinians an entry visa into Israel to participate in a joint Israeli-Palestinian memorial day event, on the basis of security concerns.
Although his decision was seemingly within the purview of the minister’s authority and policy-making powers, the court ruled that Gallant had failed to provide proof that the Palestinians in question were a security risk, and noted the large number of Palestinians who are given entry visas to come into Israel every day to work, for medical reasons, or other purposes.
“The court said that a minister cannot give a reason without sufficiently backing it up,” argued Shinar.
“The discretion of a minister is not unlimited. If a minister makes an arbitrary or capricious decision, with no basis in fact, then the reasonableness doctrine is there to enable judicial review of such a decision.”
Shinar conceded that the protection of some rights, such as those set out in Basic Laws like Basic Law: Human Dignity and Liberty, would likely be unaffected by restrictions on the use of reasonableness since other judicial doctrines, such as proportionality, could still be used to uphold them.
But he said that rights relating to equitable building planning and construction, environmental protections, and issues of equality could all suffer without the reasonableness doctrine.
And he argued that although the current bill would preserve the use of reasonableness for administrative decisions made by professional bureaucrats, passage of the law would make it more likely that such issues will be simply passed to the relevant minister for a pro forma signoff in order to avoid judicial review.
Conservative critique
It is not just liberal jurists who have come out in opposition to the current version of Rothman’s bill.
Prof. Yoav Dotan, a former dean of the Faculty of Law at the Hebrew University and a conservative legal scholar, has critiqued in writing on numerous occasions the use of reasonableness by the courts. But speaking in the Constitution Committee on Tuesday, he took exception to what he said was the “coarse” way the current bill had been “stitched together,” and to the “blanket” exemption from review by reasonableness that it would impose on decisions made by all elected officials.
“If the government decided to build a new metropolis in the Gush Dan [region of central Israel], I don’t see why the reasonableness of a court should be preferable to that of the government,” said Dotan, making a distinction between policy set by the full cabinet and that set by ministers.
But, Dotan went on, the “tens of thousands of decisions” made by cabinet ministers should not be exempt from such review. There is “no democratic or other reason to give these decisions full immunity from the court, including from reasonableness,” he argued.
He cited ministerial control over entry visas into Israel and construction planning as primary examples of the kind of ministerial decision that should remain subject to reasonableness.
The professor added that if the government nevertheless wished to exempt some forms of ministerial decisions from reasonableness that might be possible, and appropriate standards for doing so could be detailed in the legislation.
This, however, is something that has not been included in the current government bill, he noted, calling the failure “super problematic” and asserting it would “throw the baby out with the bathwater.”
The independence of the ‘gatekeepers’
Another major criticism of the bill currently being advanced through the Knesset is that it would remove the use of the reasonableness doctrine over both government appointments, such as Deri’s, and the ability of ministers to fire senior civil servants and public officials, including the attorney general and state attorney, the IDF chief of staff, the police commissioner, and the chairman of the Bank of Israel.
Speaking in the Knesset Constitution, Law and Justice Committee on Tuesday, Deputy Attorney General Gil Limon argued that this would constitute a severe blow to the rule of law.
“One of the main conditions for the ability of these officials to fulfill their duties is that they are completely independent of the political branch,” said Limon. Without the reasonableness doctrine to protect capricious dismissals, he argued, these positions would become, de facto, political appointments.
“This would severely damage the independence of the gatekeepers, and as a result, will severely damage the rule of law,” he continued, contending that the ongoing service of such public officials “would depend at any given moment on the grace of the political branch and on them doing what they are told.”
In the same hearing, Dr. Aviad Bakshi, head of the Legal Department at the Kohelet Forum, a conservative think tank that helped author much of the government’s judicial overhaul legislation, contended, by contrast, that if there were concerns regarding the ability to fire such officials, then restrictions on the ability to dismiss them should be legislated by the Knesset rather than reviewed through reasonableness by the High Court.
“If you want to legislate restrictions on firing the attorney general, the IDF chief of staff, the police commissioner then go for it, legislate away,” said Bakshi.
Opposition to the latest installment of the judicial overhaul package is strong, with legislators as well as the protest movement putting up stiff resistance.
But having generated nationwide upheaval since announcing its radical legal reform program back in January and with little to show for it, the coalition is now eager to notch up at least one legislative victory on that agenda before the Knesset goes into recess at the end of July.
The bill limiting the reasonableness doctrine is intended to be that first victory.
