An unreasonable law

Stripping the Supreme Court of its ability to apply the reasonableness standard in its judicial review of decisions made by Israel’s elected officials will allow politicians to wield their power in ways that will be hard to limit.

The “reasonableness bill” that passed the first of three Knesset readings last week is meant to break the system, not fix it.

Indeed, the reasonableness doctrine, with its inherent legal thorniness, has become a tool the court has used extensively, perhaps too much so. But in order to properly balance the system, a middle way ought to be found that does not expose the public to the harmful effects of misguided decisions by those holding elected office.

A large majority of the Israeli public wants dialogue and consensus. On the issue of reasonableness, it is a relatively simple matter. And this is what Israeli politicians from all camps must do immediately.

The reasonableness standard, something the average Israeli had probably never heard of before the current conflagration, turned the streets of Israel into a battlefield last week. What’s all the commotion about? The Israeli judicial system inherited the reasonableness from English common law, and it has been in use since the early days of the state. However, since the 1990s the Supreme Court has employed it with greater frequency, making it a key legal tool for overturning decisions by the political and administrative echelons – decisions that they believed were, well, unreasonable.

Examples of the court’s use of the reasonable standard are many. The court has invoked it to overrule ministerial appointments – Aryeh Deri this past January and Raphael Pinchasi back in the 1990s; it obligated the state to fortify every classroom in the Gaza border region against rockets; it required the Local Council of Kfar Vradim to build a mikveh (ritual immersion bath) within its borders; it determined that no immediate change should be made to the day-care subsidies for the children of avrechim (married yeshiva students); and much more.

The Supreme Court intervenes in decisions brought before it when it believes they suffer from “extreme unreasonableness.” What, then, is all the furor about with regard to “reasonableness”? The main argument of those opposed to the broad use of the reasonableness standard is that it is distinctly subjective. What one person thinks is logical and reasonable, another may regard as unreasonable. Therefore, the critics maintain that in the end the reasonableness standard ultimately allows the judgment of elected officials to be superseded at the discretion of the sitting justices. And they, with all due respect, were not elected to their posts by the people, but rather appointed by a committee. Thus say the critics, the use of the reasonableness standard violates democracy.

The arguments against the reasonableness standard are not new. They have been made by leading conservative legal scholars; Professor Yoav Dotan, most prominent among them. A few years ago, Supreme Court Justice Noam Sohlberg also wrote an article in which he proposed moderating the use of the reasonableness standard. But the bill the Knesset voted on last week takes a relatively extreme and very expansive line on curtailing the standard’s use. It actually proposes that the decisions of Israel’s elected echelon be shielded from reversal on the basis of reasonableness standard. This has potential negative consequences for the limitations we all want to place on the government and gives too wide a lane to elected officials – from mayors to ministers – to make arbitrary and harmful decisions that would be harder to undo.

Although it is true that the court would still have other legal tools, such as the proportionality test, at its disposal, an overwhelming majority of Israeli legal scholars believe that the proposed legislation is too broad.

The government’s decision to advance this extreme version of the reasonableness law is unfortunate. There are more moderate intermediate solutions on the table; for example, rendering the reasonableness test inapplicable to government decisions. Such compromise solutions are more widely acceptable.

Constitution Law and Justice Committee chair Simcha Rothman. Photo by Yoav Dudkevitch TPS.

And yet, declaring the end of Israeli democracy because this bill, which has now passed its first reading, is, at best, premature. It can be assumed that, for both sides, the bill’s unilateral enactment would be a litmus test for either proceeding with or halting further judicial reform measures.

The separation of powers and the appropriate balance between them are fundamental to democracy, along with the ability to change governments. An elected executive branch whose hands are not bound by any limitation imperils democracy and is a threat to us all. The reasonableness standard is a check on unbridled power, an essential balance. Discussion of its scope is legitimate, and it is certainly possible, and perhaps appropriate, to limit its application. But a blanket and unilateral cancellation would be a mistake.

A large majority of the Israeli public, including supporters of the judicial reform and of the sitting government, believes that such measures should only be advanced by consensus. This is the moment – perhaps the last possible moment – to demand that politicians from all parties come to their senses and sit down for candid discussions aimed at bearing balanced solutions. Otherwise, what we fear may come to pass.

First published by Arutz 7.