The judicial reform presented by the current coalition, headed by Prime-Minister Benjamin Netanyahu (Likud), led to an unprecedented national debate and one of the biggest political crisis in the last decades. Much of the discussion can be trace to the “reasonableness standard”.
The reasonableness law, approved last month, abridges of the Supreme Court’s power to annul government decisions it deems unreasonable. The reasonableness standard, used in these cases, is an important and age-old legal institute present in many countries, especially those which have their legal system based on the Anglo-Saxon common law system.
After the approval of the law, the Supreme Court of Israel set a date to review the legislation: September 12th, at 10 am. All the 15 justices – for the first time in Court’s history – will, together, be hearing at least seven petitions against the reasonableness law. The question everyone is asking – and we will try to answer it here – is whether the Court will strike down this law. To make this situation even more chaotic, the attorney general, Ms. Gali Baharav-Miara, has taken a stand against the judicial reform.
This whole political crisis can and will cause a bigger issue, regarding the tourism and many others economic activities that have a direct impact on the Israeli economy. Also, this crisis can affect the quantity of families that are willing to make Aliyah.
The reasonableness standard, shorthand for the “extreme unreasonableness doctrine”, as we know it today, has its origins in the 13th century in the United Kingdom, deriving from the due process of law standard. The first legal document that guaranteed this standard was the English charter of 1215, also known as “Great Charter of Freedoms” or “Magna Carta”.
The Great Charter restricted the sovereign’s power and established better rights for the nobles vis-à-vis the Government. It guaranteed that nobles wouldn’t be imprisoned without a fair trial and would not lose their properties without reasonable grounds.
According to the document, “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land”.
However, this concept only expanded to apply to most of a country’s population when the United States, before its independence, used the document to avoid the influence of the UK on the Thirteen Colonies’ businesses, establishing the guarantee of due legal process.
The reasonableness standard determines that administrative acts must be coherent, logical and fair. This principle requires all government actions and decisions to be rational, i.e. based on reasonable and logical criteria, and not arbitrary or illogical. Reasonable is what conforms to reason, common sense, justice; what is rational; what is legitimate, sensible, fair.
According to Dr. Amir Fuchs, Senior Researcher at the Israel Democracy Institute, the reasonableness standard can only be used in administrative acts, not regarding Constitutional Law. Thus, it cannot be used to strike down legislation.
Also, this standard was never legislated; it became part of the law and the jurisprudence. That’s how the common law system works.
Incorporation by the Israeli law and jurisprudence
The reasonableness standard appeared in concrete terms in the 1947 Associated Provincial Picture Houses Ltd v Wednesbury Corp ruling, also known as “Wednesbury unreasonableness”. This was a case where a law or an authorization was used in such an outrageous way.
According to the judge’s decision, the previous determination “was completely absurd, a decision so unreasonable that no reasonable authority could have possibly made it”. Thus, the Wednesbury doctrine was against arbitrary and capricious use of power.
Most people may think that the reasonableness standard emerged, in Israel, in the late 1980s or in the beginning of the 1990s. However, the Israeli legal system adopted this standard from the British during the Mandate period (1920-1948), incorporating it later in Israel’s jurisprudence.
Also, the Jewish law (Halacha) has a long history of emphasizing reasonableness in administrative acts and legal decision making. The principle of “derech eretz” (the way of the land) covers the ethical and reasonable conduct, being considerate to others.
The usage of the reasonableness standard isn’t new. Before its utilization earlier this year, when the Supreme Court disqualified Shas party chairman Aryeh Dery from serving as health and interior minister, curiously, it has already been used with Dery.
In 1993, the court ruled that Dery and his deputy Rafael Pinchasi must be fired from Yitzhak Rabin’s left-wing coalition, after being indicted for serious offenses. This case shows, to Dr. Fuchs, that the decision taken earlier this year that culminated this crisis is not politically motivated.
Another case happened in 2007, when the former Prime Minister Ehud Olmert’s government decided not to reinforce all the classrooms in Sderot against missile attacks. The court, at the time, had considered this administrative decision as unreasonable, because it would take too long for the kids to find a fortified classroom.
In 2014, the Kfar Vradim municipal council decided not to build a mikveh, or ritual bath, in the town. The Judicial Power considered this decision as unreasonable, taking into consideration the needs of the religious population and ordered the council to construct one.
Points of view
Supporters of the judicial reform presented by Netanyahu’s government say that the High Court of Justice shouldn’t intervene in government decision making, considering the Knesset members were elected by the population to do so. It is said that the Judicial Power has no authority to measure if the decision made by an elected representative is good or bad.
In addition, people who support the legislation argue that the way it’s been taken for judicial intervention is too subjective. Therefore, the Court could interpret in any way they want, questioning the government’s authority.
On the other side, critics of the legislation say that reasonableness is a very important standard in the Israeli legal system, being one of a few instruments the Judiciary can use to check on the excess of Israel’s centralized executive branch of government, reinforcing the checks and balances system that every democracy has. They say the standard becomes even more important in countries that don’t have a constitution.
What do specialists say?
According to Dr. Fuchs, “the court should ask itself would a reasonable government, or would a reasonable minister, or would a reasonable anything decide the way the government decided”. The court cannot decide based on their own opinions.
“It has to be very extreme unreasonableness, something that no one in their right mind would decide,” Fuchs said. “But of course, even if we define it like that, there will always be disagreements about what is extreme unreasonableness.”
Prof. Suzie Navot, a scholar of constitutional law and a vice president at the liberal Israel Democracy Institute, is against the amended law. She believes that it undermines democratic norms and removes an important way to check on government power.
The new law “abolishes the principle of the rule of law and it gives the government absolute power to make any decision it wants without oversight. In democracies, there is no absolute power for the executive or the legislative branch. This is an anti-democratic idea and very seriously harms the basic values of the State of Israel.” said Navot.
Dr. Shaul Sharf, a lecturer in constitutional law at the Peres Academic Center in Rehovot, insisted that the Court does not have any legal reason to invalidate the law. As said before, reasonableness can only be used on administrative acts, not on the legislation scope.
This is also Prof. Adam Shinar’s opinion, an expert in constitutional law at Reichman University. Although being a strong opponent of the legislation, he doesn’t think that the Supreme Court will intervene alone over the law.
The Israel Law and Liberty Forum executive director Yonatan Green said that “Any government decision of any kind – from the very top government decisions like who to appoint to the cabinet or whether to go to war, down to the most minute decision by a social security bureaucrat or some tax official – can be reviewed by the court. This is the most subjective standard one can possibly conceive of.”
What to expect?
We can be certain of the fact that the Supreme Court will not strike the law down based on the reasonableness standard. However, the seven petitions in the Supreme Court that will be read on the September 12th contains a lot of legal arguments that the justices can adopt for the thesis. In any case, the political crisis seems to be far from cooling down.
Israel and its citizens are going through the biggest legal and political imbroglio since the foundation of the state. Thousands of people, every week, join to protest and express their opinion about it. This shows us that the Israeli people care so much about their country and each one of them just want the best for every citizen.