T. Belman. With the removal of the extreme reasonableness standard, the government can do what it wants. If there is a law standing in its way, they can amend the law. The HC then would have no basis to overrule it. This is not a good thing. So the choice is, do you want an unfettered government or do you want oversight by the Supreme Court, even a left wing one? The latter option is more palatable if you stack the selection committee to ensure that a majority of judges are conservative. But this can change with a change in government.
At least the government can be held accountable by the people whereas the Court cannot.
Israel’s Recent “Unreasonableness Amendment” and its Implications. Law Profs Forum
By: Prof. Amichai Cohen, ISRAEL DEMOCRACY INSTITUTE 22.6.23
The coalition is currently seeking to advance a legislative amendment that will prevent the Supreme Court from annulling (or striking down) decisions of the government, individual ministers, and other elected officials (such as mayors) it finds to be “extremely unreasonable.”
What is the standard of extreme unreasonableness?
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. Similarly, the executive branch is also required to act in a reasonable manner.
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 intervenes only when executive branch decisions are considered to be “extremely unreasonable.” The executive branch acts 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 consider an essential consideration, or reaches an extreme imbalance among different considerations, then the Court will 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.
The current proposal would remove the Court’s powers to strike down any decision by the prime minister, the government, ministers, or other elected officials, even if the decision is extremely unreasonable.
The outcome of this amendment would be that the Supreme Court would not be able to review any decision made by these elected officials based on the grounds it was extremely unreasonable, including decisions about improper appointments to public positions or improper firing of public officials. In practice, without the Court being empowered to evaluate the reasonableness of policy, these decisions will be hidden from the public eye, and citizens will almost certainly remain unaware of decisions made and of their problematic nature.
Revoking the court’s authority to strike down executive branch decisions based on the standard of extreme unreasonableness will significantly undermine the ability to ensure that the principles of ethical behavior and lack of corruption are maintained in the public sector.
There are several reasons why it is important to preserve the authority of the court to strike down extremely unreasonable decisions in place:
- 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 will undermine 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 will also jeopardize the protections given to citizens in their interaction with administrative agencies regarding decisions made in their individual cases.
The grounds for judicial review of extreme unreasonableness is a critical component of judicial review of government decisions. To the extent that its proposed cancellation is accompanied by various other proposed reforms, such as lowering the status of ministerial legal advisers and making these positions political appointments, then these changes act in a pincer movement. On one hand, ministers will gain much more power over their legal advisers. They will be able to dismiss them, or simply ignore their counsel. On the other, advisers will no longer be able to assess ministers’ decisions based on the test of extreme unreasonableness, since ministers will know that the courts have no power to intervene. Thus, ministerial legal advisers will not even be able to require that ministers expose their reasoning to public examination.
In fact, the mere threat of weakening the legal advisors might be enough to deter them from taking a strong stance and trying to preserve their control over various deviations of the executive branch from the rule of law.
Intervention by the Court on the basis of the grounds that a decision is extremely unreasonable is relatively rare. In the large majority of cases, the Court upholds the position of the executive branch, or at the very most- instructs 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]
The Court’s intervention based on the grounds of extreme unreasonableness is not a new development, and over the years it has handed down various rulings examining decisions by state agencies on this basis. Thus, for example, when the Court discussed a regulation regarding the issuing of taxi licenses in 1976, Justice Shamgar ruled that regulations clearly tainted by unreasonableness violate the limits of authority of those who institute them, and thus are considered to be invalid.[11]
No. The Standard of Reasonableness exists in a similar forms in other countries, such as Australia,[12] Canada,[13] and the United Kingdom.[14]
Some claim that court intervention in political appointments based on the grounds of extreme unreasonableness is unusual in the democratic world. It should be noted, however, that Israeli politicians have consistently failed to follow the ethical norm of taking personal responsibility and resigning from public positions when credibly accused of inappropriate behavior or criminal suspicion. UK Prime Minister Boris Johnson, for example, resigned when suspicions were raised that he had violated his own government’s COVID restrictions; the German minister of defense resigned when it emerged that he had plagiarized others’ work for his doctoral thesis; and the German minister of education resigned under similar circumstances. There are other well-known examples from throughout the democratic world.
The President’s proposal included a recommendation that decisions made by the full government quorum on issues of policy and ministerial appointments should not be overturned solely on the basis of extreme unreasonableness. It also recommended that policy decisions made by ministers should not be overturned solely on the basis of unreasonableness unless they are arbitrary or are entirely unfounded.
At the same time, the proposal stated that the standard of reasonableness should continue to be applied, in accordance with Supreme Court case law, to other state bodies and public agencies.
It should be noted that the President’s suggestions were made with a view towards a complete constitutional arrangement in which no further changes would be made. The proposal to weaken the standard of reasonableness was coupled with other suggested arrangements designed to be fully adopted or not at all, so as to reach a proper and balanced constitutional arrangement that maintains the principle of checks and balances.
Footnotes:
[1] HCJ 6177/92 Eisenberg et al. v. Minister of Construction and Housing et al., ruling 47(2), 229.
[2] HCJ 4668/01 Head of the Opposition MK Yossi Sarid and MK Musi Raz v. Prime Minister Ariel Sharon and Ehud Yatom.
[3] HCJ 9223/10 Movement for Quality Government v. Prime Minister (November 19, 2012).
[4] HCJ 1400/06 Movement for Quality Government v. Deputy Prime Minister (March 6, 2006).
[5] HCJ 3997/15 Movement for Quality Government v. Foreign Minister (February 12, 2015).
[6] HCJ 3095/15 Movement for Quality Government v. Prime Minister (August 13, 2015).
[7] HCJ 232/16 Movement for Quality Government v. Prime Minister (May 8, 2016).
[8] HCJ 8397/06 Wasser v. Minister of Defense (June 28, 2007).
[9] HCJ 5782/21 Leah Zilber v. Minister of Finance (January 1, 2022).
[10] Administrative appeal, Sela v. Yechieli (September 9, 2014).
[11] HCJ 156/75 Daka v. Minister of Transport (January 1, 1976).
[12] In Australia, it has been explicitly ruled that reasonableness is not restricted to cases of decisions “that a reasonable person would not be able to make,” and that unreasonableness also applies to decisions based on disproportionate allocation of weight to a particular consideration. Minister for Immigration and Citizenship v. Li (2013) 248 CLR 332.
[13] In Canada, the ruling in the case Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65 determined that the accepted test for assessing actions by the administration is “reasonableness.” An action is considered unreasonable if it is not rational in light of the explanations given for it, or if it is not aligned with the factual context.
[14] In the United Kingdom, the test of reasonableness is most commonly applied to claims of human rights infringements. Margit Cohen, “The Test of Unreasonableness in Administrative Law,” in The Theodore Or Book, pp. 773–816 (2013).
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Israel’s Recent “Unreasonableness Amendment” and its Implications. Law Profs Forum
The Political Context of the Amendment
When examined abstractly, removed from the present political and constitutional context the “unreasonableness amendment” may not seem that drastic to outside observers. After all, the courts still retain the power to review governmental action on other grounds, and the amendment only applies to decisions of the Cabinet and government ministers. However, it is essential to see the amendment in its proper political and constitutional context. This amendment is the first part of a comprehensive plan proposed by the Minister of Justice in January 2023, a few days after the present government assumed power.
That plan involves weakening the power and independence of the Supreme Court and unprecedently shifting power to the executive by a series of systematic steps, which include: overhauling the system of selecting judges and justices so as to accord the governing coalition total control over their selection; immunizing basic laws from judicial review (with no limitations on what basic laws might include or the process of their enactment); severely limiting judicial review over ordinary legislation; providing the coalition in the Knesset with override power to reinstate legislation that has been struck down by the court as unconstitutional; and severely weakening the power of legal advisers in all government departments and agencies, by making them political appointees who may be appointed and dismissed at will and whose legal advice, ordinarily binding, may be ignored.
There is no precedent in Israel’s constitutional history for legislation that bluntly and directly seeks to diminish the jurisdiction of the Israeli courts to review administrative action. It is clear that the unreasonableness amendment is simply the first part of the government’s plan to weaken the judiciary and to free the government from any effective constraint on unbridled use of its powers. It is also crucial to understand this change in the broader context of the existing constitutional framework in Israel: even before all these changes would be enacted, the executive branch in Israel is already extraordinarily powerful compared to most democracies. It effectively controls parliament and its lawmaking agenda (including the enactment of basic laws), and it lacks all the constraints and checks and balances that exist in the U.S. and many other constitutional democracies (such as an entrenched constitution, bicameralism, presidential veto, federalism, etc.).
Hence, the clear intention of the government’s plans is to create an authoritarian regime in which the executive branch not only controls the legislative branch but can also do more or less what it likes, with no effective oversight or legal controls (with formally free elections giving it legitimacy).
The unreasonableness amendment is thus only the first step towards executive authoritarianism, stripping the courts from an entire body of jurisprudence that served as a primary constraint on executive arbitrariness, illegality, and corruption. Realizing the context and severity of this measure, which otherwise could mistakenly pass as a legal technicality, gave rise to the unprecedented protest and public resistance manifested in Israeli streets, media and public sphere.
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