Is it reasonable to nix ‘reasonableness’ standard in judicial review in Israel?

‘Reasonableness’ is the word of the day in Israel. While it has dominated the news cycle in the Holy Land, only two-thirds of Israelis appear to understand its full context, according to a poll conducted by Israel's Kan 11 news.

Prime Minister Benjamin Netanyahu's government continues to move ahead with its judicial overhaul plan after talks with the opposition failed to result in a broad consensus. The coalition is moving forward by bringing each clause of the controversial reform, one at a time, to a vote in the Knesset, the Israeli parliament.

Their next goal is to pass the disputed Reasonableness Standard Bill before the end of July.

The bill, which already passed its first reading, has reignited enthusiasm among anti-government protesters. For a moment, it appeared as if the mass protests against the reform had subdued after more than 26 weeks. However, the latest activities during Israel's ‘Day of Disruption’ this week have proven otherwise. Instead, the protests are not letting up. 

What is the Reasonableness Standard Bill?

The current bill that has Israel in turmoil is, in fact, a standard for judicial review. The “reasonableness” consideration is a legal doctrine that enables the courts to strike down government decisions by deeming them “unreasonable.” In other words, this standard is applied by courts to determine the lawfulness of administrative decisions. If passed, the new bill would prevent the application of this standard in a court judgment.

Israel’s former Attorney General Avichai Mandelblit said in an interview on Israel's Channel 12 news that the “reasonableness” standard is “the most central tool of the Supreme Court and the legal advisors.”

Here are just a few examples of government decisions that were nixed by Israel’s High Court, citing "unreasonableness:"

• A measure of deterrence following the Second Intifada in 2000, which aimed at transferring the families of suicide terrorists to the Gaza Strip.

• A decision to withhold the 2021 Israel Prize from mathematician Prof. Oded Goldreich, accused of supporting the BDS movement. 

• A deportation order for U.S. student and BDS activist Lara Alqasem in 2018.

• The banning of the 2002 film “Jenin, Jenin” from being screened in Israel. This came after an IDF soldier filed a lawsuit for defamation based on a false portrayal of his actions in Israel’s Operation Defensive Shield. Years later, the court reversed that decision and barred the screening of the movie. 

• A ban on Palestinian families entering Israel to participate in a joint controversial Memorial Day ceremony with Israelis in Tel Aviv in the years 2018, 2019, and 2023.

• A government plan from the early 2000s to fight soaring housing prices. The plan would have allowed housing construction on agricultural lands in kibbutzim and small towns in rural Israel via financial incentives.

• Several appointments of senior officials, including ministers indicted or convicted of crimes, as well as the overturning of appointments. 

• A 2007 decision by the government to only reinforce some classrooms against rocket attacks in 24 schools located in communities on the Gaza border, thus requiring the government to provide the necessary funding to fortify all classrooms.

Arguments FOR the Reasonableness Standard Bill

Israel’s right-wing coalition and its supporters stress that the “reasonableness” standard has been used by the courts to annul government decisions in a subjective manner. They argue there are no clear criteria for the application of “reasonableness” other than the judges’ own political agenda and worldview.

They claim it to be one more component that authorizes judges in Israel to rule in an activist, interventionist approach, against the decisions of democratically-elected public representatives. 

In addition, they stress that there are other existing laws by which judges can limit government so-called “unreasonable” decisions and appointments without having to resort to the very fluid, arbitrary standard of “reasonableness.”

“A judge has plenty of tools to reject unreasonable decisions: The grounds of legality, proportionality, conflict of interest, lack of good faith, extraneous considerations, discrimination, excess of authority and the grounds of procedural fairness.

“A decision that meets all of these is probably clearly reasonable,” wrote on Twitter Professor Gaudi Taub, a prominent conservative Israel political commentator.

“The judges and their supporters, academics, publicists and power-hungry lawyers throw sand in your eyes so that you don't notice what the fight is about: It's not about reasonable or unreasonable decisions, it's about who will have the last word in matters that require discretion - elected officials to whom the law has given this authority, or judges who can override decisions they don't like, without any justification in the law,” Taub added.

Proponents of judicial reform also say there is no such parallel in other democratic countries. They point to the double standard of opposition leaders Yair Lapid, Avigdor Liberman and Gideon Sa’ar, who previously expressed the opposite view of the ones they are now voicing publicly. 

In a video circulating on social media, Lapid is heard saying: “I think it is wrong that the court will change world order according to ‘reasonableness’ test – a completely obscure, subjective definition, that the Knesset has never turned into law.”

Arguments AGAINST the Reasonableness Standard Bill

Critics of the bill believe that while certain government decisions might not be explicitly against the law, they could still be “unreasonable.” They say the bill would take away the court's ability to counter government corruption and arbitrary government decisions.

Opponents consider the legislation to be one more step in the direction of turning Israel into a “dictatorship.” In their protests, they lament the “end of democracy” in Israel.

They worry about a powerful centralized government without enough checks and balances of the courts. Such a government, they say, would be freely able to appoint the “wrong” people to key positions.

In fact, they claim that the government is pushing the Reasonableness Standard Bill to achieve very specific goals, including the return of the Orthodox Shas party leader Aryeh Deri to the cabinet and pushing for the firing of the current Attorney General Gali Baharav-Miara. 

Nadav Eyal, a left-wing Israeli political commentator who writes for Yedioth Aharonot, wrote in a column this week: “It’s about the ‘reasonableness’ of corruption. It's the ‘reasonableness’ that Netanyahu who wants to rule over us all.”

Eyal warned that if such a bill pushed by the government was to take effect 75 years ago, when the State of Israel was established, “Ministers who stood trial for bribery would have remained in their positions… Children would have been abandoned to their fate in semi-protected schools around the Gaza border… Gas stations would be closed on Shabbat if local authorities wanted it – another matter that the Supreme Court overruled due to extreme unreasonableness. Political appointments would have dominated the public service. In such a country, the government could use its authority and ‘good faith’ to appoint a police commissioner, a governor of the Bank of Israel, an IDF chief of staff, and finally a legal adviser to the government [Attorney General].”

What’s next?

An altered version of the judicial reform reasonableness standard bill was discussed at the Constitution, Law and Justice Committee on Thursday. The government is preparing a second and third readings of the bill in the Knesset. More protests are expected to follow during the coming weekend.