Judicial reform: Extremely unreasonable and incredibly close

NOAM GREENBERGER explains why the "reasonableness standard" is the focus of an advancing bill and increased protests in Israel this week.

Yesterday the Knesset voted on the first reading of a bill to restrict the Supreme Court’s power to review decisions made by elected officials, a move that has spurred increased protests over the past week.

The bill would remove the court’s jurisdiction to overturn government decisions on the basis that they breach a standard of reasonableness determined by the court.

The reasonableness standard has been controversial for a long time. In fact, it’s remarkable that it has survived intact until now. Its application illuminates the unique way in which the values of public accountability, the rule of law and democracy intersect in Israel and illuminates the ways in which Israeli democracy differs from Westminster systems, like Australia, or written constitutional systems, like the US.

The most recent example is the court’s ruling in January that it was extremely unreasonable for the government to appoint Shas leader Aryeh Deri as Interior Minister because of his conviction for bribery and his admission to tax offences.

The reasonableness doctrine is a product of English law. It has also been accepted into Australian law. In its original form it stands for the principle that if a government makes a decision that no reasonable person in its position would have made, the decision can be quashed by judicial review.

However, it’s unlikely an Australian court would ever deal with the question of whether a ministerial appointment had been tainted by unreasonableness. Australian courts would likely dismiss the case from the outset on the basis of "non-justiciability" (in colloquial terms - it’s not for us to decide the matter). To determine that a matter is non-justiciable is to refrain from considering its merits either because the court has no remedy to offer or because offering any remedy would infringe upon the separation of powers. It is also, however, a self-imposed limitation on the rule of law. After all, if no court will intervene then whatever law applies cannot be enforced.

In contrast, since the 1980s Israel’s High Court has taken the position that just about anything is justiciable. In this way, the court ensures that the elected branches of government act in accordance with the law, as interpreted by the court. It is arguable that where multi-party coalition governments are the norm, the only way to protect the rights and interests of society as a whole is to ensure close scrutiny of government. For this reason, notes Professor Yoav Dotan, while the “practice of ‘impeachment’ by judicial review is unique to Israel … it enjoys massive support from legal elites and the general public alike.”

The "general public" referred to by Professor Dotan does not include the significant elements of the Israeli electorate that support the government’s judicial reforms. These supporters of judicial reform argue that the reasonableness standard binds Israeli governments by a standard which overlooks the reality of coalition building in a deeply fragmented country. That standard also goes well beyond the ministerial eligibility requirements as set out in the Basic Laws. In 1992, 2015 and 2022, the Government was dependent on Shas in order to maintain a majority in the Knesset. Not appointing Deri as a minister could have prevented the formation of a government, which would have resulted in a caretaker government remaining in power. The removal of Deri as a minister (in breach of coalition agreements) could have destabilised the government on each occasion. None of those alternatives promotes stable democratic government and public confidence in it.

Additionally, the principles set down by the High Court place considerable weight on the decision to prosecute an elected official. If being charged with a serious enough offence can be decisive as to whether a minister (or other public official) is fit to hold office, then prosecutors (and the Attorney-General) can interfere with the political system. When combined with significant delays between charge and a final outcome, the potential for gross abuses of prosecutorial discretion becomes real.

The current government undoubtedly has the power (and some public support) to restrict the application of the reasonableness doctrine. However, it is worth considering why it has elected to do so via new law. Instead, it could seek to enshrine Prime Ministerial discretion and appropriate standards of fitness to hold various public offices within the Basic Laws (which have - since 1995 - obtained constitutional status).

Instead if the new bill becomes law, the government will have succeeded in limiting the reasonableness standard without a balancing guard on Knesset overreach. Israel would be left with one less judicial check on executive power – but no closer to reaching consensus on how that power should be regulated.

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