The “extreme unreasonableness doctrine” under the British Mandate morphed into the personal opinion of a judge. How it happened.
These days, the Knesset’s Constitution, Law and Justice Committee is discussing the proposal to abolish the use of the reasonableness clause. This clause has been used many times by the Israeli court in recent years when it wants to invalidate various governmental decisions including civil servant appointments and even the awarding of the Israel Prize. The extensive use of this clause has received a lot of criticism among jurists and professionals; even Chief Justice Noam Solberg did so when he published a comprehensive article several years ago on the use of the reasonableness clause, explaining why it is a problematic tool and stating that it should be significantly reduced.
Israel inherited the reasonableness clause from the British mandate. The actual name of this clause was the “extreme unreasonableness doctrine”, and was meant to be used only in extreme cases. The change of name from the “extreme unreasonableness doctrine” to the doctrine of what is known as “the realm of reasonableness” reflected a fundamental change that occurred in the 1980s led by Aharon Barak. Whereas in the past, the use of the extreme unreasonableness clause was only used in rare cases where it was clear for all to see that there was a serious problem, now it is the judge’s opinion and his or her subjective perception of what is reasonable and what is not, that decides. And this gives the judges enormous power.
To understand how absurd this situation is, we will provide, as an example, a ruling of the former Attorney General, Avichai Mandelblit. Mandelblit wanted to appoint his associate, Momi Lamberger as the State Attorney; however, Amir Ohana, who was the Justice Minister at that time and who was the only one who had the legal authority to appoint the State Attorney, requested to appoint another candidate as temporary acting State Attorney. Mandelblit hastened to issue an opinion stating that the appointment of anyone other than Lamberger as State Attorney is not a reasonable appointment. It seems that any “reasonable” person would understand that the Attorney General’s decision that his pick is the only person in the entire State of Israel who is qualified and that the choice of anyone else is not reasonable, is a troublesome decision to say the least.
As we mentioned above, the recognition that the reasonableness clause is problematic is not something new, and even Aharon Barak has recently expressed his opinion that this clause can be reduced. Moreover, the cancellation of this clause, without further changes to the justice system, will not fundamentally change the relationship between the three governmental branches. Judges who do not feel themselves constrained by the legislated tools provided to the court can justify the disqualification of governmental decisions with many other subjective reasons. As long as the relationship between the three governmental branches vis-à-vis governmental legislation is not regulated, then the cancellation of the reasonableness clause, on its own, is of little importance.
And yet, the proposed cancellation of the reasonableness clause IS significant, for a very different reason from its effect on the judiciary. From the moment that the government declared that it would begin the legislative process to cancel the reasonableness clause, the calls went out for the renewal of civil uprisings, the refusal to go to the army and the call to establish a “Kaplan force”, [Kaplan is the name of a major thoroughfare in central Tel Aviv where the largest of the demonstrations against the reform take place] to fight against the forces of evil that seek to deny judges the power to strike down laws because of the judges’ subjective ruling of “unreasonableness”.
Precisely because the cancellation of the reasonableness clause does not greatly affect the relationship between the three governmental branches without further legislation regulating the status of the court, precisely because it is an issue that until not long ago was not controversial and the call to reduce the scope of this clause was not revolutionary, precisely because of this, the importance of the legislation regarding the reasonableness clause lies in exposing the hypocrisy of the protest organizations.
These organizations, contrary to what they tell the public, are not really interested in the relationship between the governmental branches and the democratic structure of the State of Israel. All that these organizations really care about is preventing the current Israeli Knesset, democratically elected by the right from governing. And it is this that is a threat to democracy.
Attorney Yotam Eyalis CEO of the Legal Forum for the Land of Israel.
The really bad thing about a “reasonableness” clause is the it provides a get out of jail card only to those who have the (unreasonable) power to use it. This places them above and beyond the law, which is very unreasonable.