A new judicial reform bill draft is set to be discussed by the Constitution, Law and Justice Committee on Sunday, the first act of legislation for the reform since the freeze in March.
Delayed from its original Wednesday session to allow committee members to attend the funerals of terrorism victims, the new bill would restrict the unreasonableness standard.
The new bill would end the use of reasonableness in judgments by the High Court of Justice and lower courts on decisions by the government and all elected officials.
What is reasonableness?
Reasonableness is a common law doctrine that allows the courts to engage in judicial review of government administrative actions that go beyond the scope of what a reasonable and responsible authority would undertake. Committee legal advisor Dr. Gur Bligh said in the panel’s preparatory notes that the doctrine is applied often in decisions that involve harming of the rights and interests of individuals.
Bligh explained that critics of the unreasonableness standard contend that when the court uses the doctrine it usurps the government’s authority and enforces its own views. Opponents question the expertise of the court to impress its own views on a professional matter, and it does so without the legitimacy or accountability of being a democratically elected body. Critics also say that the standard is highly subjective.
Legal Advisor to the Knesset, attorney Gur Bligh attends a Law and Constitution Committee meeting, during a discussion on preparing proposoals for the ”Defendant’s Law” and the law to dissolve the Knesset, in the Israeli parliament, on June 26, 2022 (credit: OLIVIER FITOUSSI/FLASH90)Those that favor the use of the reasonableness doctrine in the Israeli legal system say that it has promoted norms of governmental decency and has served a key role in protecting citizens. With the increase of power of the executive and legislative over the years, proponents say that the tool is needed to hold the government in check. Without the doctrine, there would be a gap in the checks of accountability for the government that no other power could fill. They also say that the principle is only applied in extreme cases, and does not supplant the government’s authority with the court’s, but simply declares it as unacceptable without offering its own policy in exchange. When it comes to decisions on professional matters, Bligh noted that the courts rule on similar cases such as examination of medical malpractice cases.
Bligh said that it was essential for the committee to explain its principal reason for restricting the doctrine. It also needed to clarify the wording of the bill, such as to which elected officials the law would apply. Bligh questioned if it would apply to all elected officials down to the level of mayors and local councils. He also wanted the committee to consider what would happen with civil servants who have had power delegated to them by elected officials.
Restrictions on reasonableness
The committee also needed to address the level of restriction on reasonableness. The bill does not completely eliminate reasonableness, as initially proposed by Justice Minister Yariv Levin in January. The current bill is based largely on Justice Noam Sohlberg’s view of the doctrine, which is more restrictive. Bligh notes that some argue for broader applicability for reasonableness, as the reluctance to use the tool leads to more violations of rights. Bligh said that Europe’s courts focus more on the doctrine of probability and that newer common-law countries use narrower interpretations of reasonableness. Australia and Canada have reportedly expanded the interpretation over the years.
Bligh said that the reasonableness bill was different from past judicial reform bills in that other articles addressed the relationship between the legislative and judiciary, while the current bill addressed the boundaries also with the executive branch.
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