Reasonability and Beyond – Why it is so Important for Israeli Democracy

Friday June 30, 2023 – י״א תַּמּוּז תשפ”ג

 This week we witnessed unbridled דettler violence against Palestinians. On Saturday afternoon – yes, the seemingly Orthodox Jewish settlers allowed themselves to violate Shabbat in order to attack Palestinians. A large mob of armed settlers stormed the Palestinian village of Umm Safa. The rioters wounded several Palestinians and set fire to four houses and 20 vehicles. Video footage from the scene showed one of the settlers firing toward the village with an automatic weapon.

There is no question that we must raise our voices against this abhorrent Jewish terrorism. The lone voice of IDF Chief of Staff Hertzi HaLevy spoke clearly to his officer cadets saying: “An officer who sees an Israeli citizen intending to throw a Molotov cocktail at a Palestinian house and stands idly by cannot be an officer.”

This problem of Jewish settler violence against innocent Palestinian civilians is not going away. In fact, with members of the current Government fanning the flames of Jewish terrorism, it will only get worse. Last week’s dramatic cabinet decision of expediting the process for approval of settlement home construction throughout the West Bank (illegal according to international law) and giving Minister Betzalel Smotrich the controlling role, was approved without even a safeguard of consultation with the Prime Minister over decisions.

These are examples of the government acting in an “unreasonable” manner – which is why the pro-democracy protestors have re-engaged over a seemingly minor issue: The Reasonableness Doctrine Bill – which seeks to block Israel’s courts from reviewing or striking down Executive Branch decisions based on what is known as their “extreme unreasonableness.”

A source in the coalition said on Tuesday that the government intends to pass the Reasonableness Doctrine Bill’s first reading within two weeks and pass it into law by the end of the current Knesset session on July 31.

Labor MK Rabbi Gilad Kariv said the law was not commonly used so there was little precedent for its use. The scary thing about the bill, currently being advanced by the Netanyahu government, is that this simple but vague clause of unreasonableness will allow decisions by elected officials to be immune from judicial oversight.

The problem is that the standard isn’t written in any law, explained Avi Bell, a law professor at Bar-Ilan University and San Diego University and a proponent of the coalition’s judicial reforms. “It’s a judge-made doctrine.” Therefore, it is subjective to the will and the whim of independent judges and what they deem to be reasonable or not, and of course what one thinks is reasonable the other does not.

The most recent practical implications of this law took place as the current coalition was being proposed in January. PM Netanyahu sought to appoint Shas Chairman Aryeh Deri to be Minister of the Interior. It was a good example, Naor said, as the Supreme Court ruled that it was “extremely unreasonable” for Deri, a convicted criminal for tax fraud who pledged not to run again or to serve in senior positions, to assume a senior ministerial position (one that would put him in charge of tax collection).

Haaretz Editor-in-Chief Aluf Benn wrote:

“Revoking the reasonableness standard sounds like mere legal jargon, like the topic of some theoretical academic debate over tea at the Supreme Court. But in reality, the bill being promoted by Knesset Constitution, Law, and Justice Committee Chairman Simcha Rothman would neutralize any Supreme Court oversight of elected officials. It would only permit the court to intervene in the decisions of professional bureaucrats. It would make every minister an emperor and every non-political government official a drone.”

We need to understand that the cancelation of the reasonableness clause is frightening and dangerous because it could easily lead to the erosion of Israeli democracy in a swift and comprehensive manner.

For instance, thanks to a law that Israel inherited from the British Mandate, the Interior Minister (Section 143 of the Municipalities Ordinance) holds the power to disband a municipality. The minister is barred from using it in the year preceding local elections. But once those elections are over later this year, this government can depose from office as many mayors and local and regional council heads as it wants. It can eliminate city council members and replace them with government loyalists. So, Shas Chairman Aryeh Deri, who would now be reappointed as Interior Minister, could replace city council members with rabbis and kashrut supervisors and turn Tel Aviv into the Taliban.

What is the standard of extreme unreasonableness all about?

In Israel, there is no law defining judicial review powers over decisions made by the executive branch – the executive branch and legislative branch are essentially combined, and the only check against the combined executive-legislative branch is the judiciary. Thus, the grounds for judicial intervention in administrative affairs are “common law” standards declared in court decision. These grounds entail the examination of three aspects of decision-making by the executive branch:

1. Did it have the authority to make such a decision?
2. Was a proper procedure for decision-making adhered to?
3. Were appropriate considerations applied?

This final criterion refers to an examination of whether decisions were made in good faith, in an egalitarian and proportionate manner, void of improper considerations, and while respecting human rights. Similarly, the executive branch is also required to act in a reasonable manner, without the need for judicial review.

The obligation to act with reasonableness means that the administration must assess all relevant considerations, assign the appropriate weight to each, and maintain the balance among them. Giving far too much, or far too little, weight to a particular consideration can result in significant flaws in administrative decisions.

Tomer Naor, the chief legal officer of the Movement for Quality Government in Israel, explained “reasonableness” as applying to issues that may not be explicitly forbidden by the law, but are obviously “not done,” such as a murderer who wants to collect a family member’s life insurance.

Why we should be concerned and why it is problematic to cancel the standard of “extreme unreasonableness?”

According to the Israel Democracy Institute, the current proposal would remove the Court’s powers to strike down any decision by the Prime Minister, the government, ministers, or other elected officials, even if the decision is extremely unreasonable.

The outcome of this amendment would be that the Supreme Court would not be able to review any decision made by these elected officials based on the grounds it was “extremely unreasonable,” including decisions about improper appointments to public positions or improper firing of public officials. In practice, without the Court being empowered to evaluate the “reasonableness” of policy, these decisions will be hidden from the public eye and citizens will almost certainly remain unaware of decisions made and of their problematic nature.

Revoking the court’s authority to strike down executive branch decisions based on the standard of “extreme unreasonableness” will significantly undermine the ability to ensure that the principles of ethical behavior and lack of corruption are maintained in the public sector.

There are several reasons why it is important to preserve the authority of the court to strike down extremely unreasonable decisions that include such  major issues as:

• Protecting human rights
• Preventing corruption
• Encouraging rational and balanced decision-making
• Maintaining checks and balances and separation of powers

More importantly, the move to strike down the court’s authority for judicial review of “extreme unreasonableness” is just the gateway to various other proposed reforms, such as lowering the status of ministerial legal advisers and making these positions political appointments. On the one hand, ministers will gain much more power over their legal advisers. They will be able to dismiss them or simply ignore their counsel. On the other hand, advisers will no longer be able to assess ministers’ decisions based on the test of “extreme unreasonableness,” since ministers will know that the courts have no power to intervene. Thus, ministerial legal advisers will not even be able to require that ministers expose the reasoning for their decisions to public examination.

Aluf Benn reflected:  “In short, Israel’s democracy will be inundated by a toxic wave of religious and nationalist aggression before the flood turns Tel Aviv into Hawara, or into Bnei Brak, at least. Therefore, the protest movement, which has reawakened to fight “revoking the reasonableness standard” is just as important, if not more so, than the wave of opposition to the proposed changes to the Judicial Selection Committee or any other of the proposed reforms.”

The ruling coalition has made its agenda crystal clear and The Reasonableness Doctrine Bill is an opening salvo – paving the way for a series of unreasonable laws that seek to prevent the Judiciary from fulfilling its role as a check and balance over the combined Executive-Legislative branches.

Just as we need to speak up and speak out against terrorism and settler violence, so we need to speak up and speak out against this legislation before it’s too late, and don’t let anyone tell you that by doing so you’re being unreasonable.

Shabbat Shalom.