The reasonableness standard, or more precisely "the cause of unreasonableness", belongs to the area of administrative law, and is used by the courts to examine decisions by the executive branch of government. The idea is that an administrative authority, such as the government, has freedom of action within "the range of reasonableness." In cases in which the court comes to the conclusion that a decision by an administrative authority is outside the range of reasonableness, it can order the decision to be rescinded.
Is it unique to Israel?
The reasonableness standard is not an Israeli invention. It is drawn from English law, and in its "usual", or narrower, form, it exists in some of the countries that follow "the common law", that is, Britain, and countries that were under British rule in the past. In which case, why does it arouse such stormy controversy in Israel?
The watershed in this issue is seen by legal experts as being the "Golden Pages" ruling in 1980. This ruling, written by Supreme Court Justice Aharon Barak, very much widened the considerations of reasonableness that the court could take into account. For example, Barak ruled for the first time that an administrative authority had freedom of action only within what he described as "the range of reasonableness", and that any substantial or extreme departure from this range could lead to the authority’s decision being set aside.
Prof. Yoav Dotan of the Faculty of Law at the Hebrew University of Jerusalem, who is known as a fierce critic of the way in which the reasonableness standard has become accepted in Israel, but who made headlines recently when he told the Knesset Constitution, Law and Justice Committee that he actually opposed the legislation that the government is now promoting, explained to "Globes" that "before the administrative revolution that Barak introduced, the courts intervened in administrative decisions only when it was clear that the decision was made without legal authority, on the assumption that the legislature did not intend to empower the administrative authority to make patently unreasonable decisions." He says that, in its current format, "the term ‘reasonableness’ as it exists here is much broader than it is anywhere else."
On the other hand, Prof. Dotan himself admits that such comparisons are always problematic, since in other Western countries "there are checks and balances that don’t exist here, such as the rules of the European Union, or the European Convention on Human Rights."
Prof. Amichai Cohen of the Israel Democracy Institute points out in a document distributed by the institute that other countries simply have ethical norms that apply in some of these matters, such as resignation by a minister or official in the case of inappropriate behavior or suspected criminality.
What decisions has the High Court of Justice annulled on the grounds of unreasonableness?
The most famous example came in 1993, when the High Court of Justice obliged then prime minister Yitzhak Rabin to remove his minister of the interior, Aryeh Deri, from office. Deri had been indicted on a series of severe charges, including bribery (and was eventually found guilty and served a prison sentence). The judges found that "the charges against minister Deri are extremely severe, and failure to exercise the power to remove him from his post amounts to extreme unreasonableness." The decision became known as "the Deri-Pinhasi" rule (Rafael Pinhasi was a deputy minister from the Shas party who was also indicted), under which anyone against whom a criminal indictment has been filed cannot serve as a government minister.
Other prominent examples are the ruling in 2007 against the government’s decision, mainly on budgetary grounds, not to fully reinforce school classrooms in communities near the Gaza Strip against rocket fire; the ruling in 2018 obliging then minister of defense Avigdor Liberman to allow Palestinians to enter Israel to attend an alternative Memorial Day ceremony; and the ruling in 2021 that prevented Liberman, by then minister of finance, from cancelling the subsidy for daycare for children of men in full-time rabbinical studies during the school year.
What’s happening now?
The coalition is advancing a bill that will prevent the High Court of Justice from applying the reasonableness standard in the way it has done up to now. The bill given a first reading by the Knesset last night states that the Supreme court, sitting as the High Court of Justice, "will not discuss the question of the reasonableness of a decision by the government, the prime minister, or any other minister, or by any other elected official such as the law may specify, and will not hand down an order to any of them." In other words, if this bill becomes law, High Court of Justice rulings along the lines of those cited above will not be able to be given in the future.
Did the opposition agree to this legislation?
Opposition party leaders Yair Lapid and Benny Gantz expressed agreement in principle to the compromise outline of President Isaac Herzog, which included a reference to narrowing the application of the reasonableness standard, but, besides the fact the fact that they accepted the outline only on condition that it would be implemented in its entirety, the president’s wording on the matter was more nuanced, and would have allowed court intervention in some cases.
Moreover, the president’s outline referred only to non-intervention in decisions by government ministers, whereas the wording of the current bill opens up the possibility of exempting decisions by any elected official (such as a city mayor), although that would require further legislation.
Did this legislation appear in the New Hope party’s platform?
The following text (slightly abbreviated here) appeared on the website of the opposition New Hope party, led by Gideon Sa’ar: "The reasonableness standard has, over the years, become a ‘backdoor’ for applying judicial review to decisions that are at the heart of the function of elected officials. The judges rule whether an act or decision by an elected official is reasonable or not, and thus place their judgement and set of values above those of the person whom the public elected. The standards of administrative law should be regularized by legislation, in such a way as will reduce the scope of the reasonableness standard, and exclude it from application to decisions by elected officials." This text was recently removed from the party’s website, and there is no doubt that it does not look good, to say the least, from the point of view of Sa’ar and his colleagues (see their response below).
The fact that a text appeared on a party’s website does not, however, mean that it is part of that party’s election platform. By means of the Wayback Machine website, an archive of the Internet, it can be established that in February 2021, before the election following which Gideon Sa’ar became minister of justice, New Hope’s election platform did not contain any promise about the reasonableness standard. The conclusion is that New Hope’s website did display a text concerning the reasonableness standard, but not as part of the party’s official platform.
In an interview with Channel 13 television last week, Sa’ar claimed that because of "confusion," two documents were posted on his party’s website: one of them the party platform, which has not changed in the past two years; and the other the content that was taken down. The party has told "Globes Whistleblower" in the past that it opposes the government’s current moves but "for the sake of giving the complete picture it should be stated that in the publicity on behalf of the party before the platform was published, the matter of reducing the scope of the reasonableness standard was included."
Why is the bill called "the Sohlberg proposal"?
Like citing the president’s outline and the New Hope website, calling the legislation "the Sohlberg proposal" is intended to show that it is a "soft" bill that enjoys broad support. Here, those promoting the legislation appear to have a strong case, although certain reservations should be mentioned. Sohlberg is of course Supreme Court Justice Noam Sohlberg, who expressed his position on the matter in 2019, at a conference of The Israeli Association of Public Law. His speech was later published in the periodical Hashiloach of the Tikvah Fund.
In his speech and in the article, Sohlberg commented on difficulties with the reasonableness standard. He first of all talked about the "substantial gap" between the accepted use of the standard and the way in which Barak reformulated it in the Golden Pages ruling. Secondly, he explains that this gap leads to the court going beyond the natural function that it is meant to fulfil and trespassing on the territory of the executive branch. The result, he says, is that the court decides on controversial matters in accordance with the views and sense of justice of the judges on the panel, which is liable to lead to the abandonment of all objective legal criteria.
Sohlberg’s proposed solution is to distinguish between "the elected echelon and the professional echelon." Decisions by the elected echelon are, he says, mostly decisions reflecting a world view, and he recommends that there should be no intervention in these decisions. By contrast, he sees intervention by the court in the considerations of a professional official who is not elected as a more legitimate step. Sounds familiar? Certainly. This is the basis of the bill that the government is now promoting.
It should however be pointed out that Sohlberg’s speech amounted to a recommendation to his Supreme Court colleagues on how they should rule. It does not necessarily follow that he supports the idea of his recommendations being anchored in legislation that by its nature is rigid and ties the hands of the judges to a much greater extent.
If the law passes, will the government be able to make any appointment it likes?
Here we find ourselves in future scenarios, and greater caution is called for. As previously explained, the reasonableness standard is a tool employed by the court in examining administrative decisions. It is not a basis for striking down laws, for which different, more rigid criteria apply. But it could be that, if this tool is taken away from the judges, they will be able to annul decisions using other tools, or even to create new ones that don’t exist today.
Prof. Dotan: "Even if this bill passes, it Is not at all clear that it will kill the ‘Deri rule’ (mentioned above), or that it will suddenly become possible to fire the attorney general. In principle, the High Court of Justice could intervene in appointments and dismissals by invoking other rationales. In Deri’s case, they will call it corruption in government, the rule of law, clean hands. In the case of the attorney general, it could be argued that the dismissal was carried out for extraneous reasons, or that the reasons are arbitrary or capricious. Will abolishing the reasonableness standard actually reduce the scope of judicial review of decisions by the elected echelon? It’s too soon to tell."
Dr. Amir Fuchs of the Israel Democracy Institute is less sanguine about the consequences of the legislation. "It’s true that administrative law is entirely a product of legal rulings, and is therefore very fluid," he told us in the past, mentioning in this context the "proportionality test" as an example of an alternative to the "reasonableness standard." "Proportionality cannot, however, cover everything, such as appointments," he said. "They don’t harm anyone specifically."
Fuchs believes that, in the end, other tests will not be able to be a complete alternative to reasonableness, which represents "a kind of basket that allows the annulment of egregiously strange decisions made on the basis of extraneous considerations or out of favoritism, things can sometimes be very hard to prove."
Published by Globes, Israel business news - en.globes.co.il - on July 11, 2023.
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