With the Knesset expected to pass a bill restricting the reasonableness standard on Monday night, debate has intensified about the use of the common law doctrine.
The reasonableness standard is used by courts to strike down government administrative decisions deemed extremely beyond the scope of what a reasonable and responsible authority would decide. It can be applied to government appointments and policies.
Those in favor of passing the bill argue that the formulation of the principle is entirely subjective. There are no set guidelines on when reasonableness can and should be applied to a matter. Petitions to the High Court of Justice may appeal on many grounds, and the nebulous reasonableness standard is another basis for hearing the petition.
What do pro-reformists say?
As there are no clear criteria for the application of the reasonableness standard, pro-reformists argue that judgments of government administrative decisions essentially are based on the world views of justices. Essentially, this subverts the policies of elected officials with those of undemocratically appointed judges. Pro-reformists contend that such broad judicial review of administrative action is unheard of in other democratic countries.
This has become an especially sensitive topic in regard to government appointments like ministerial positions. Pro-reformists say that it is the prerogative of the prime minister to select the members of his cabinet and that the judiciary is interfering in the executive branch’s ability to govern. Reasonableness in their eyes is one of many expanded powers and tools used by an activist court to undemocratically set the terms of governance.
MK Simcha Rothman is seen addressing a session of the Knesset’s Constitution, Law, and Justice Committee, in Jerusalem, on July 4, 2023. (credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)Pro-reformists take issue with the crossing of boundaries into the responsibilities of elected officials, saying that this harms democratic representation for the electorate. The private bill submitted by Knesset Constitution, Law, and Justice Committee chairman Simcha Rothman calls to ban the use of reasonableness against decisions by elected officials.
What do the reasonableness standard’s proponents say?
Those who argue in favor of the reasonableness standard note that it is rarely used, and only in the most extreme of cases. These extreme cases, in which a ministry or government body may be acting arbitrarily or capriciously, may not have any other immediate recourse mechanism for impacted citizens. Elections, even in Israel, only happen so often, and the court creates immediate accountability. Citizens affected by administrative actions sometimes cannot wait until the next election for the issue to be resolved. There would be a gap in the legal system for how to treat such cases. To avoid rights abuses, it is argued that reasonableness must remain in use.
The tool of reasonableness is also one of the few measures that the judiciary has to check the excess of the government, which is already highly centralized and powerful in Israel. Critics argue that the Israeli system has a sensitive balance, and removing checks like the reasonableness standard without creating another check against the government can create an unaccountable government.
Since the bill would be limited in its application for elected officials, anti-reformists fear that there could be a growth in corruption. Certain government decisions might not be explicitly against the law, but still unreasonable for an official to pursue because they may benefit from the outcome.
The restriction on the application of reasonableness to elected officials could also result in an umbrella of protection for civil servants. Arbitrary and unfair government decisions could be made by non-elected officials but approved or transferred for finalization to protected elected officials, thereby immunizing otherwise problematic policies and actions.
Some believe that reasonableness should be restricted, but that the current formulation of the law discards the benefits of the standard along with its negative outcomes.
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