Canceling this judicial tool would lift yet another barrier to unlimited power and open the door for rampant corruption.
Administrative law is meant to protect the country’s residents against arbitrary government actions and to require the executive branch to function as the public’s trustee. In Israel, the principles of administrative law have been laid down in rulings of the Supreme Court, just as the rules of English administrative law, which inspired them, were relied on by English courts of law. They include rules that require every action by the government to be legal and within the bounds of the authority granted it by law; that the decision to take an action be made in a valid procedure in which the decision-makers satisfied the procedural obligations set down by the law, did not act with a conflict of interest, and relied on an appropriate factual basis; and that the decision itself be based on reasonable and proportionate exercise of government discretion.
The standard of reasonableness—more generally referred to as the standard of extreme unreasonableness—plays two critical roles in the constellation of measures designed to protect citizens against the abuse of government power. First, it is meant to prevent a situation in which the government makes a clearly illogical and capricious decision without a serious attempt to take into account and balance the many relevant factors involved. For example, one can expect that when deciding on the location of a new airport, the Minister of Transport will give relatively great weight to the impact on the quality of life of those living nearby and the transportation needs of future travelers, and assign relatively lower importance to other factors, such as a small difference in the value of the land that the state will expropriate for the project. In such cases, application of the standard of reasonableness rests on the idea that the government is granted authority in order to exercise it for the good of the citizens and that the burden of proving that the decision rests on a sound basis guarantees that the government will indeed weigh all relevant considerations in a responsible fashion.
Put differently, the democratic principle that legitimizes granting power to the government for the sole purpose of using it for the benefit of its citizens, justifies external scrutiny of the considerations that are used in exercising this power. Nevertheless, it is important to note that according to the principle of reasonableness as it is applied in Israel, the Court cannot revoke a government decision in cases in which the judges disagree with the government decision; but rather - only in cases in which the balance between the various considerations that were made is unreasonable in the extreme. That is, when dealing with a decision that no reasonable government authority would accept.
In addition, it is often difficult to prove the existence of specific defects in the process that preceded the executive branch decision or in the considerations behind it, even though they led to a result that seems to be extremely problematic. It is possible, for example, that some inappropriate consideration (such as a discreet nudge by a childhood friend who expects to reap a huge profit from the expropriation of the land) tipped the balance for the minister’s (hypothetical) surprising decision about the airport’s location, overriding other weighty considerations. The standard of reasonableness is meant to provide additional protection to citizens against the improper use of government power in cases when it is difficult or even impossible to identify the hidden flaw, which may involve serious corruption. When a decision is unreasonable in the extreme, the court may nullify it even if it cannot determine what improper motive led the minister to skew the balance among the various factors influencing his or her decision.
It follows that elimination of the standard of reasonableness for all decisions by elected officials would lead to a significant dilution of the protection that the judicial system affords Israeli citizens against improper government decisions. As long as the decision was made by a minister, the executive branch could make questionable decisions—sometimes for hidden motives that are improper or corrupt—and the court would not be able to protect the general public interest. What is more, elimination of the standard of extreme reasonableness would deprive the executive of an important incentive for structuring its decision in a way that demonstrates a serious weighing of all the relevant issues. It would have a dramatic effect on the quality of government decisions in Israel.
Some argue that elimination of the standard of reasonableness would not be a dramatic step, because the bill before the Knesset would not apply to the professional echelon (but only to elected officials) and because citizens could still avail themselves of protections on other grounds, such as proportionality. It is also argued that the court has been too active in its invocation of the standard of extreme reasonableness. These assertions are not very persuasive. Ministers would be able to “immunize” many decisions by the bureaucrats in their ministry against judicial review based on their reasonableness simply by presenting the decision as their own. As a result, the legal protection available to citizens against the vast majority of government actions would be dramatically weakened. In addition, the claim of disproportionality is relevant only when it is a specific citizen who is harmed. It cannot be invoked when the public interest as a whole is impacted (for instance, the public interest that appointed officials be suited for their post, or that an airport is not located in an unsuitable location). As for the argument of “judicial activism”—even if specific court decisions against government actions can be criticized as overreaching, abolishing the standard of reasonableness would be tantamount to throwing out the baby with the bath water and would lead to a situation of almost no external restraints on the exercise of government power.
The bottom line is that abolition of the standard of extreme reasonableness would lead to a further concentration of power in the hands of the executive—a power that is already greater in Israel than in many other democracies because of the Government’s control of the legislature. It would then be able to exercise many important powers in an arbitrary fashion, sometimes for dubious motives. This would mean a significant erosion of the idea that underlies administrative law; namely, that the executive branch must function as the public’s trustee. A step in this direction is a move away from the system of checks and balances that is the underpinning of democratic regimes and that is intended to ensure that those who hold government power—both elected and professional officials—do not abuse the vast power they hold.
Beyond this, in a country grappling with severe problems of government corruption and has already recorded in its short history a distressingly long list of ministers and senior officials indicted and convicted for corruption, elimination of the standard of reasonableness would open “loopholes” in the governmental decision-making process and increase governmental corruption. As with other parts of the judicial overhaul being pushed by Minister Yariv Levin and MK Simcha Rotman, the Israeli public and Israeli democracy would be dealt a severe blow by the continuing effort to grant more and more power to the government, to crush the mechanisms of control and oversight designed to prevent the accumulation of unchecked power by the executive branch, and make it more difficult to oppose the tendency of unlimited power to generate more corruption.
This article was originally published in the Times of Israel.
Prof. Yuval Shany is a Senior Fellow of the Israel Democracy Institute and a Professor of Law at the Hebrew University of Jerusalem.