The Supreme Court Hearing on the Revocation of the Reasonableness Doctrine

On September 12, 2023, an unprecedented panel of 15 Supreme Court Justices will convene to hear petitions requesting to strike down the recent amendment to the "Basic Law: The Judiciary," stating that the Court cannot review government decisions under the standard of Reasonableness. Basic Laws have quasi-constitutional status in Israel, making this one of the most important cases to be heard in the long history of Israel's Supreme Court, as it addresses eight of the many petitions submitted against the amendment.

On July 24, 2023, the Knesset passed the second and third readings of the third amendment to the Basic Law: The Judiciary, placing restrictions on the reasonableness doctrine. The amendment states that the courts, including the Supreme Court, cannot hear cases or issue orders against elected officials on the basis of the reasonableness of decisions they make, and it is widely seen as the first step in the controversial Judicial Overhaul package. 

Section 15 (D1), which was added to the basic law, states that: 

Notwithstanding what is stated in this basic law, those who hold judiciary powers by law, including the Supreme Court when sitting as the High Court of Justice, will not discuss the reasonableness of decisions made by the government, the prime minister, or any other minister, and will not issue orders in this regard. In this section, “decisions” refers to any decision made, including those relating to appointments, or decisions to refrain from utilizing any given powers. 

What is the Reasonableness Doctrine?  

In Israel, there is no law defining judicial review powers over decisions made by the executive branch. Thus, the grounds for judicial intervention in administrative affairs are “common law" standards declared in decisions of the courts. 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. 

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. 

The Supreme Court would intervene only when executive branch decisions were considered to be “extremely unreasonable.” The executive branch is expected to act within a "sphere of reasonableness." As long as it operated within this sphere, it may choose between a variety of options. However, if it fails entirely to weigh an essential consideration, or reaches an extreme imbalance among different considerations, then the Court could intervene. Only rarely does this relate to a decision by elected representatives, such as the government or a minister; the vast majority of this case law relates to decisions made by unelected bureaucratic officials. 

Why is This Hearing Especially Important? 

The restriction of the reasonableness doctrine significantly harms the ability of the Supreme Court to enact oversight of the activities of the executive branch, and the ability of the government’s legal advisers to require the government to follow the law and use the appropriate considerations when making decisions. 

This restriction is the first element in the judicial overhaul being advanced by the coalition. The opinion of the Supreme Court on this issue may indicate to the various parties the boundaries of the Court’s future intervention. 

The Supreme Court has never struck down a basic law or an amendment to one. While it has ruled on several occasions that it has the authority to do so in certain cases, it has never exercised this power in practice. 

This will also be the first time that the Court has sat as a panel of 15 justices. 

Furthermore, the cancellation of the Reasonableness Standard was incredibly problematic. There are several reasons why it was important to preserve the authority of the court to strike down extremely unreasonable decisions:

• Preventing corruption: The standard of extreme unreasonableness is vital in order to ensure that administrative bodies operate in the public interest and fulfill their responsibilities and that citizens have effective recourse when they experience arbitrary and unreasonable decisions. This test is a tool for the courts and for legal advisers to prevent cronyism, improper public appointments, and irrational decision-making by the executive branch.
• Encouraging rational and balanced decision-making: The very existence of the standard requires the executive to create a broad factual basis for making decisions. When an administrative agency is aware that the courts can assess not only administrative processes but also the way in which different interests are taken into account, it will ensure that a more complete administrative record is kept in order to defend its position and show that its decision was made using appropriate considerations.
• Protecting human rights: In cases in which an official wishes to base their decision on discriminatory policy considerations, they will conceal their real motivations. In cases in which invalid considerations are concealed (and thus the decision cannot be struck down on the basis of improper considerations), or when the decision did not give appropriate weight to human rights, the requirement for reasonableness forces the official to explain his reasons, many times exposing the real motivations.
• Maintaining checks and balances: Cancelling the authority of the court to use extreme unreasonableness undermined an important mechanism of checks and balances with regard to the executive branch. This mechanism is particularly important in the Israeli system, which has few checks and balances. Cancellation also jeopardizes the protections given to citizens in their interaction with administrative agencies regarding decisions made in their individual cases.

The Main Arguments in the Petitions Against the Law 

1. Arguments regarding the restriction on the use of the reasonableness doctrine itself, including the harm caused by the limits on the authority of the court to strike down extremely unreasonable decisions, as well as this restriction as the first step in the 'democratic erosion' to which the adoption of the entire judicial overhaul plan would lead.  
2. The procedure via which the amendment was passed in the Knesset. The amendment was passed by means of a special procedure, in which it was proposed by the Knesset Constitution, Law and Justice Committee rather than by the government or a particular member of Knesset. The question being posed to the Supreme Court is whether the Committee chairman, MK Simcha Rothman, was entitled to use such a procedure for an issue that is the subject of fierce disagreement between the coalition and the opposition. 
3. The tool used by the Knesset—restricting the power of the Court to rule on a certain issue. Such restrictions are not acceptable in Israeli law. In this case, the restriction placed on the Supreme Court’s powers is particularly serious, in that in practice, it grants superiority to administrative decision-making over the opinion of the Court. 

Additional Background: The Types of Cases in Which the Court Intervenes Based on Reasonableness

Intervention by the Court on the basis of the grounds that a decision is extremely unreasonable has been relatively rare. In the large majority of cases, the Court has upheld the position of the executive branch, or at the very most- instructed it to reassess the decision.

The following are several examples of areas in which the Supreme Court has applied the interevent in decisions of the executive branch, due to the fact that it considered them to be extremely unreasonable.

• Examining the decision-making of the attorney general on whether to launch criminal investigations and issue indictments: On rare occasions, the Court has criticized the decisions of the attorney general relating to criminal charges. One example was the 1986 ruling in the Ganor case, in which the Court determined that the Attorney General’s decision not to charge the heads of the banks in the manipulation of stocks affair, a manipulation which caused the collapse of the Israeli stock market, was tainted by extreme unreasonableness, as it did not give sufficient weight to the price paid by the public as a result of the banks’ actions.
• Political appointments: In a small number of instances, the Court has ruled that the decision to appoint an individual to a position, or not to remove an individual from a position, was extremely unreasonable. Thus, for example, the Supreme Court ruled that the failure to dismiss Minister Arye Deri and Deputy Minister Rafael Pinhasi after indictments were issued against them in counts of serious corruption, was tainted by extreme unreasonableness (1993). The Court took a similar view regarding the appointments to senior positions of two of those involved in the Bus # 300 affair, Yossi Ginosar to the position of director general of a ministry,[1] and Ehud Yatom to the position of head of the Anti-Terror Staff.[2] The court found that their appointment despite the fact that they were involved in a massive coverup case by the General Security Administration was extremely unreasonable.

As a rule, however, the Supreme Court has been wary of using the standard of extreme unreasonableness and has rejected the overwhelming majority of petitions relating to public appointments, even approving on occasion, the appointment of ministers with criminal convictions. Prominent examples include the following:

• The Supreme Court rejected a petition demanding the dismissal of Minister of the Interior Eli Yishai and Minister of Finance Yuval Steinitz, following the Carmel Forest fire disaster.[3]
• The Supreme Court rejected a petition opposing the continued service of Tzachi Hanegbi as a minister in the Prime Minister’s Office, in light of the decision to issue an indictment against him, subject to a hearing[4]; and subsequently, the Supreme Court rejected a petition against Hanegbi’s appointment as deputy foreign minister after he was convicted of perjury.[5]
• The Supreme Court rejected a petition opposing the appointment of Aryeh Deri as minister of the economy and of Negev and Galilee development,[6] as well as the subsequent petition against Deri’s appointment as minister of the interior[7]—the position in which he committed the criminal offenses of which he was previously convicted.

• Policy decisions that the court defined as extremely unreasonable:
• The decision by the minister of defense not to install protection against rocket attacks in all classrooms in the city of Sderot, and instead to retain the system of common “protective spaces” despite the immediate danger to students (2007).[8]
• The decision not to automatically recognize doctoral degrees issued by foreign universities, ignoring the fact that many students had relied on previous decisions by the Ministry of Education when they began their studies (2005).
• The decision to suspend the decision of the minister of finance, according to which full-time Kollel (yeshiva) students would lose subsidies for daycare for their children, without giving Haredi families sufficient time to make alternative arrangements (2022).[9]
• The decision not to construct a ritual bath (mikve) for women in the town of Kfar Vradim (2014).[10]