The Reasonableness Issue Requires Serious, Informed, and Consensual Discussion

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Only a government that wishes to make extremist and corrupt decisions would be afraid of the reasonableness test. While the test would certainly benefit from discussion of the framing of its boundaries and application, the legislation currently on the table hands the government unrestrained power.

These are the days of reasonableness—a vague term that is suddenly on everyone’s lips. On one side are those who claim that this is a minor issue that has already been agreed upon in the negotiations at the President’s Residence, while on the other- are those who view it as a major component of the government’s “judicial overhaul,” something that will change the face of Israel.

Let me try to explain what this is all about. First, what is being proposed is an amendment to what is referred to in Israel as a Basic Law. Basic Laws are “chapters” in Israel’s emerging constitution. This week, the Knesset is set to discuss legislation of an amendment to the Basic Law: The Judiciary, which will prevent the Supreme Court from overruling decisions made by the government, ministers, and other elected officials on the basis that those decisions are not reasonable.

But Israel has no legislation anchoring judicial review of decisions made by the executive branch. There is nothing written on how decisions should be taken by ministers, officials, and the government. Rather, the standards set for judicial intervention have developed in case law, and they are tested in several stages: Was there authority for the decision or action to be taken? Was proper procedure followed? And did those making the decision apply proper considerations in a suitable manner? In this latter context, the criteria involved are whether the decision was made in good faith, reflecting principles of equality and proportionality, without inappropriate considerations being taken into account, and while respecting human rights. Thus, the government and its representatives are required to act with “reasonableness.”

Why reasonableness? Because the government is the public’s trustee. Not just the public that voted for it, but the entire public, and thus it is obligated to act reasonably and in the public interest. The Supreme Court intervenes only when decisions are “extremely unreasonable.” That is, the government and its ministers can make thousands of different decisions, but only when they fail to take into account substantive considerations, or apply an extremely imbalanced set of considerations, will the Court intervene.

The reasonableness test is essentially a "tool" enabling the Court to ensure that the government and public agencies take decisions in an appropriate manner. The government is obligated to act reasonably, to explain its decisions, to apply rational and relevant considerations in a professional manner; the role of the Court is to make sure that it does so.

There is certainly room to discuss the reasonableness standard, its boundaries, and its application. Indeed, leading jurists have been doing so for years. Thus, if the bill was truly seeking to address the complex nature of reasonableness, it would be concerned with defining the obligation of reasonableness and setting its boundaries. But this is not the case. Instead, the bill entirely strips the Supreme Court of its authority to overrule decisions made by the prime minister, the government, ministers, or other elected officials, even if such decisions are extremely unreasonable. Incidentally, until now the Court has been very sparing in its use of this power, and in contrast to claims that “the Supreme Court runs the country,” it is the government that rules and runs Israel.

Passing this amendment to the Basic Law will mean, for example, that the government and its ministers will have a free hand in appointing and firing officials. The government will be able to fire gatekeepers such as the Attorney General, the State Attorney, the police commissioner, the IDF Chief of General Staff. It will then be able to appoint instead any unsuitable candidates it chooses, including their cronies or corrupt officials. The government will have a "green light" to make appointments based not on the principle of equal opportunity, but on the principle of, “it’s who you know, not what you know.” The only criterion for appointees will be their loyalty to those who appoint them. Instead of “gatekeepers” defending the public interest, ethical conduct, and proper administration, we are likely to have “bodyguards” who are loyal only to their ministers.

In addition, once the Knesset has been dissolved ahead of elections, the government (which in such cases is known as a “transition government”) will be able to act without the current “obligation of restraint,” and hand out financial favors to certain sectors at the expense of the public purse, make whatever appointments it wants without any Knesset oversight, and take long-term decisions without public trust or legitimacy.

We should keep in mind:  A government that wants to act in its citizens’ interests, in a professional manner and on the basis of appropriate considerations, has nothing to fear from the test of reasonableness. Only a government that might be interested in making extremist, corrupt, outlandish, or arbitrary decisions is afraid of reasonableness. Because in extreme cases of this kind, which were rare in Israel until now, the Court steps in to restrict the government’s power.

Just last year, the Supreme Court ruled that the decision made by the Minister of Finance to suspend subsidies for daycare for the children of Kollel students without advance warning, and thus without giving families a chance to make other arrangements, was extremely unreasonable. A similar ruling was given regarding the decision not to install protections against rocket attacks in classrooms in Sderot. Should the current amendment be passed, ministers will have unlimited leeway to make any decision they see fit.

This is the story in a nutshell: The government wants unlimited power, to be able to fire whoever it wants and to appoint whoever it wants to senior positions. To achieve this, the government needs to “override” the Supreme Court, to create a form of immunity for itself. Then it will be free to do whatever it wants, with no restrictions.

It is important to look at the whole picture, not just one piece of the puzzle. Reasonableness is just one detail, while the overall plan is much more comprehensive. It has been called a “reform.” Its goal is to do away with judicial review, and to hand over unlimited power to the government (the coalition). In January, when presenting his reform, Justice Minister Levin spoke about five main components:  Introducing an override clause requiring a simple Knesset majority of 61; canceling the reasonableness test; removing the Supreme Court’s ability to strike down basic laws; making legal advisers to government ministries into political appointees; and changing the composition of the Judicial Selection Committee. All five are still on the table.

What do these proposals have in common? First, that all the components of Israel’s public systems which are neutral, professional, non-partisan, and objective will become controlled by the government. And second, the government seeks to gain unrestrained power. These proposals, then, are driven not by an interest in the public good, but by a thirst for power.

Thus, reasonableness should be the subject of a proper, comprehensive, serious, informed, and (in particular) consensual discussion. The reasonableness doctrine certainly needs some revision, as do other areas of the judicial system. But is the current hasty and heavy-handed legislation the way to achieve this? It seems to me that this would be a highly unreasonable assumption.