Text
Proposal for Basic Law: The Judiciary (Amendment No. 5) (The Reasonableness Standard)
Amendment of Article 15
- In Basic Law: The Judiciary, in Article 15, after subsection (D), the following will appear:
"(D1) Notwithstanding what is stated in this basic law, those who have judicial authority according to law, including the Supreme Court, sitting as the High Court of Justice, shall not adjudicate the matter of the reasonableness of a decision of the government, of the prime minister or of another minister, or of another elected official as is determined by law, and shall not issue an order towards any of them on the aforementioned matter."
https://fs.knesset.gov.il/25/law/25_ls1_2822385.pdf
* Bill on behalf of the Constitution, Law and Justice Committee.
Status
Approved in its first reading on July 11, 2023 (awaiting a second and third reading in the plenum).
On July 11, 2023 the bill passed in its first reading in the plenum (without opponents from the coalition at all); a few days afterwards the second and third readings are expected to take place. In accordance with the time frame remaining until the beginning of the summer recess of the Knesset (on July 30, 2023), the coalition is expected to pass the bill in three readings by the end of the session.
Meanwhile, there are calls from the President of Israel and from opposition figures (especially Benny Gantz) to stop the legislation and return to talks on this issue – regarding which it is certainly possible that broad agreement could be reached.
The opposition strongly opposes this bill (and has claimed that it might lead to the rapid dismissal of the attorney general).
This bill is the first to be advanced since the talks at the president's house broke down following the "maneuver" that the coalition carried out in an attempt to cancel the elections for the Knesset's representatives in the Judicial Selection Committee, in which only a member of the opposition was elected.
Following the advancement of the bill, on July 11, 2023, at the initiative of the leaders of the protest movement, a large-scale "day of disruption" took place throughout the country.
The content of the bill
According to the current bill, the courts (including the Supreme Court) will not be authorized to review decisions of the government, the prime minister, a minister or an elected official based on the reasonableness standard. The bill is subject to changes (mainly regarding the fact that heads of municipal authorities will be excluded, and it will be possible to perform judicial review of their decisions based on the reasonableness standard).
The reasons given for supporting the bill
From the bill's explanatory notes: "The development of grounds for administrative review has occurred mainly through judicial rulings, including the development of the reasonableness standard. Today this standard allows courts to overturn an administrative decision that is unreasonable in the sense that it does not provide "proper weight to the various interests that the administrative authority must take into consideration in its decision" (HCJ 389/80 Yellow Pages Ltd. vs. Israel Broadcasting Authority), in the case of "fundamental or extreme unreasonableness."
On the use of the reasonableness standard in this sense, and in particular on the application of the reasonableness standard regarding decisions by elected officials, it is claimed, inter alia, that determining the principled balance between the various considerations concerning an administrative decision should be made by elected officials and not by the courts. Consequently, it is proposed to state in the Basic Law: The Judiciary that a judicial authority shall not be able to adjudicate the reasonableness of a decision of the government in plenary, of the prime minister or of another minister, or of another elected official as is determined by law, or to issue an order towards an elected official regarding the reasonableness of his (or her) decision.
It should be noted that the aforementioned does not limit the authority of courts to adjudicate or to issue orders based on other grounds of administrative review, including the proportionality standard."
The bill is based on what is referred to as "Justice Sohlberg's outline" (as it is presented by them) according to which the courts will only lose the ability to overturn, based on the reasonableness standard, decisions of elected officials, but will retain the ability to overturn decisions by the professional ranks.
According to figures in the coalition, this is a worthy bill that was even proposed in the past, in one constellation or another, by representatives of the opposition, the most prominent of whom is former Justice Minister Gideon Sa'ar.
The reasonableness issue is seen as one regarding which the gaps are relatively narrow and it is possible to reach agreement.
Opposition to the bill
Many have expressed opposition to cancelling (or reducing) the reasonableness standard.
The position of the attorney general in a position paper from February 2, 2023 that related to the Minister of Justice's original proposal:
"In a democratic state, the role of an administrative authority is to serve the public. The concept of reasonableness incorporates first and foremost the state's obligation to act fairly towards individuals and the public as a whole, and to make its decisions after all of the relevant considerations have been considered and a proper balance has been made between them. The authority's obligation to act reasonably is the basis for the reasonableness standard in judicial review, as a central tool for enforcing and ensuring that this obligation is carried out.
It should be clarified that the reasonableness standard is not unique to Israeli administrative law, and it is a recognized and common grounds for judicial review in various countries whose legal system is similar to the Israeli system.
Cancelling reasonableness as a grounds for judicial review will, in practice, lead to cancelling the ability to enforce an authority's obligation to act reasonably. Citizens will no longer have a remedy to prevent harm to them and to their rights, as the result of an extremely unreasonable decision, on a daily basis. Nor will there be the possibility of carrying out judicial review of situations in which an extremely unreasonable decision harms proper administrative activity or the integrity of the public service.
The role of judicial review of decisions by the administrative authority is to examine whether it has met the obligations that apply to it, including the obligation of reasonableness. Even though the proposed arrangement seemingly does not seek to cancel the obligation of the authority to act reasonably, its result in practice, as stated, is analogous to cancelling it.
The memorandum does not address this result and does not offer any alternative. The memorandum assumes that the Knesset will enter the significant "vacuum" that will emerge in the enforcement of administrative law, in its role of overseeing the government. However, without belittling the supervisory role of the Knesset, the parliamentary tools were not intended or designed to perform supervision of routine administrative decisions – general or particular – and all the more so as the Knesset does not have the ability to grant a real remedy to a citizen.
In light of the aforesaid, cancelling the standard, as proposed, would remove a vital means of reviewing the actions of the administration, to protect against decisions that violate individual rights, are improper, arbitrary, and unreasonable in the extreme, and thus seriously harm the checks and balances that exist between the branches of government, and affect many grounds and rules in the field of administrative law. Cancelling the standard, as proposed, is not compatible with the state's basic obligations towards the public.
Furthermore, also in this context, the issue cannot be examined only through the prism of the judicial branch, as this would violate the balance between the branches of government and harm good governance. Consequently, it is necessary to formulate a comprehensive arrangement that would include first and foremost the regulation of substantive law – rules of administrative law. Comprehensive regulation that includes the obligations of administrative authorities on one hand and the scope of judicial review with respect to each of them on the other hand, would enable maintaining the inherently delicate checks and balances between the branches of government in Israel and creating a full and coherent arrangement.
It is doubtful that the proposed arrangement is suitable from the outset to be enshrined in Basic Law: The Judiciary, as there is a need to regulate the issue in its entirety, including the obligations imposed on the administrative authority, in separate legislation that is specific to administrative law.
In any case, as this is a weighty issue that affects the relationship between the administrative authorities and the public on a routine basis, it requires comprehensive thought, clarification and the holding of discussion in the framework of a joint work process."
According to the deputy attorney general this would create a "black hole in democracy" in a way that would allow arbitrariness in decisions of elected officials in the absence of a moderating factor regarding government decisions.
Prof. Suzie Navot from the IDI argues that cancelling reasonableness would lead to considerable corruption and to the continued gradual erosion of democracy.
Figures who are seen as critics of judicial activism also oppose the bill:
Prof. Yoav Dotan, who is considered a "conservative" and consistent opponent of judicial "activism," stated that this is a bill that lacks any support in comparative law and constitutes the total elimination of the reasonableness standard. Also, despite the fact that the coalition relies on his positions, he stated that he never proposed completely cancelling the reasonableness standard (especially regarding appointments) but rather expressed support for adopting an arrangement that is similar to the one that exists in law regarding mayors (a committee that decides). Furthermore, and according to Dotan's proposal – the reduction of the reasonableness standard is still subject to the absence of arbitrary and/or capricious considerations.
According to Prof. Yuval Elbashan (who is considered "conservative" and supports reducing the power of the HCJ) – this bill is "aggressive" and "extreme" because there are no balances in the law (as proposed at the president's house, for example: establishing a committee, review of appointments by ministers, non-review of the appointment of ministers, etc.). According to him, the "new" bill is not a starting point for negotiations but rather constitutes an end point of the law, and in this situation, this is an "unreasonable" law.
Finally, it should be noted that in accordance with various factors, the bill currently proposed does not at all match the agreements (that allegedly did not exist) at the president's house. This is because according to reports, the emerging agreement stated that it would not be possible to overturn policy decisions by the government, however it would be possible to review, in accordance with this standard, appointments made by the ministers themselves; and that agreement regarding this standard would be reached only as part of complete legislation.
Text
Proposal for Basic Law: The Judiciary (Amendment No. 5) (The Reasonableness Standard)
Amendment of Article 15
"(D1) Notwithstanding what is stated in this basic law, those who have judicial authority according to law, including the Supreme Court, sitting as the High Court of Justice, shall not adjudicate the matter of the reasonableness of a decision of the government, of the prime minister or of another minister, or of another elected official as is determined by law, and shall not issue an order towards any of them on the aforementioned matter."
https://fs.knesset.gov.il/25/law/25_ls1_2822385.pdf
* Bill on behalf of the Constitution, Law and Justice Committee.
Status
Approved in its first reading on July 11, 2023 (awaiting a second and third reading in the plenum).
On July 11, 2023 the bill passed in its first reading in the plenum (without opponents from the coalition at all); a few days afterwards the second and third readings are expected to take place. In accordance with the time frame remaining until the beginning of the summer recess of the Knesset (on July 30, 2023), the coalition is expected to pass the bill in three readings by the end of the session.
Meanwhile, there are calls from the President of Israel and from opposition figures (especially Benny Gantz) to stop the legislation and return to talks on this issue – regarding which it is certainly possible that broad agreement could be reached.
The opposition strongly opposes this bill (and has claimed that it might lead to the rapid dismissal of the attorney general).
This bill is the first to be advanced since the talks at the president's house broke down following the "maneuver" that the coalition carried out in an attempt to cancel the elections for the Knesset's representatives in the Judicial Selection Committee, in which only a member of the opposition was elected.
Following the advancement of the bill, on July 11, 2023, at the initiative of the leaders of the protest movement, a large-scale "day of disruption" took place throughout the country.
The content of the bill
According to the current bill, the courts (including the Supreme Court) will not be authorized to review decisions of the government, the prime minister, a minister or an elected official based on the reasonableness standard. The bill is subject to changes (mainly regarding the fact that heads of municipal authorities will be excluded, and it will be possible to perform judicial review of their decisions based on the reasonableness standard).
The reasons given for supporting the bill
From the bill's explanatory notes: "The development of grounds for administrative review has occurred mainly through judicial rulings, including the development of the reasonableness standard. Today this standard allows courts to overturn an administrative decision that is unreasonable in the sense that it does not provide "proper weight to the various interests that the administrative authority must take into consideration in its decision" (HCJ 389/80 Yellow Pages Ltd. vs. Israel Broadcasting Authority), in the case of "fundamental or extreme unreasonableness."
On the use of the reasonableness standard in this sense, and in particular on the application of the reasonableness standard regarding decisions by elected officials, it is claimed, inter alia, that determining the principled balance between the various considerations concerning an administrative decision should be made by elected officials and not by the courts. Consequently, it is proposed to state in the Basic Law: The Judiciary that a judicial authority shall not be able to adjudicate the reasonableness of a decision of the government in plenary, of the prime minister or of another minister, or of another elected official as is determined by law, or to issue an order towards an elected official regarding the reasonableness of his (or her) decision.
It should be noted that the aforementioned does not limit the authority of courts to adjudicate or to issue orders based on other grounds of administrative review, including the proportionality standard."
The bill is based on what is referred to as "Justice Sohlberg's outline" (as it is presented by them) according to which the courts will only lose the ability to overturn, based on the reasonableness standard, decisions of elected officials, but will retain the ability to overturn decisions by the professional ranks.
According to figures in the coalition, this is a worthy bill that was even proposed in the past, in one constellation or another, by representatives of the opposition, the most prominent of whom is former Justice Minister Gideon Sa'ar.
The reasonableness issue is seen as one regarding which the gaps are relatively narrow and it is possible to reach agreement.
Opposition to the bill
Many have expressed opposition to cancelling (or reducing) the reasonableness standard.
The position of the attorney general in a position paper from February 2, 2023 that related to the Minister of Justice's original proposal:
"In a democratic state, the role of an administrative authority is to serve the public. The concept of reasonableness incorporates first and foremost the state's obligation to act fairly towards individuals and the public as a whole, and to make its decisions after all of the relevant considerations have been considered and a proper balance has been made between them. The authority's obligation to act reasonably is the basis for the reasonableness standard in judicial review, as a central tool for enforcing and ensuring that this obligation is carried out.
It should be clarified that the reasonableness standard is not unique to Israeli administrative law, and it is a recognized and common grounds for judicial review in various countries whose legal system is similar to the Israeli system.
Cancelling reasonableness as a grounds for judicial review will, in practice, lead to cancelling the ability to enforce an authority's obligation to act reasonably. Citizens will no longer have a remedy to prevent harm to them and to their rights, as the result of an extremely unreasonable decision, on a daily basis. Nor will there be the possibility of carrying out judicial review of situations in which an extremely unreasonable decision harms proper administrative activity or the integrity of the public service.
The role of judicial review of decisions by the administrative authority is to examine whether it has met the obligations that apply to it, including the obligation of reasonableness. Even though the proposed arrangement seemingly does not seek to cancel the obligation of the authority to act reasonably, its result in practice, as stated, is analogous to cancelling it.
The memorandum does not address this result and does not offer any alternative. The memorandum assumes that the Knesset will enter the significant "vacuum" that will emerge in the enforcement of administrative law, in its role of overseeing the government. However, without belittling the supervisory role of the Knesset, the parliamentary tools were not intended or designed to perform supervision of routine administrative decisions – general or particular – and all the more so as the Knesset does not have the ability to grant a real remedy to a citizen.
In light of the aforesaid, cancelling the standard, as proposed, would remove a vital means of reviewing the actions of the administration, to protect against decisions that violate individual rights, are improper, arbitrary, and unreasonable in the extreme, and thus seriously harm the checks and balances that exist between the branches of government, and affect many grounds and rules in the field of administrative law. Cancelling the standard, as proposed, is not compatible with the state's basic obligations towards the public.
Furthermore, also in this context, the issue cannot be examined only through the prism of the judicial branch, as this would violate the balance between the branches of government and harm good governance. Consequently, it is necessary to formulate a comprehensive arrangement that would include first and foremost the regulation of substantive law – rules of administrative law. Comprehensive regulation that includes the obligations of administrative authorities on one hand and the scope of judicial review with respect to each of them on the other hand, would enable maintaining the inherently delicate checks and balances between the branches of government in Israel and creating a full and coherent arrangement.
It is doubtful that the proposed arrangement is suitable from the outset to be enshrined in Basic Law: The Judiciary, as there is a need to regulate the issue in its entirety, including the obligations imposed on the administrative authority, in separate legislation that is specific to administrative law.
In any case, as this is a weighty issue that affects the relationship between the administrative authorities and the public on a routine basis, it requires comprehensive thought, clarification and the holding of discussion in the framework of a joint work process."
According to the deputy attorney general this would create a "black hole in democracy" in a way that would allow arbitrariness in decisions of elected officials in the absence of a moderating factor regarding government decisions.
Prof. Suzie Navot from the IDI argues that cancelling reasonableness would lead to considerable corruption and to the continued gradual erosion of democracy.
Figures who are seen as critics of judicial activism also oppose the bill:
Prof. Yoav Dotan, who is considered a "conservative" and consistent opponent of judicial "activism," stated that this is a bill that lacks any support in comparative law and constitutes the total elimination of the reasonableness standard. Also, despite the fact that the coalition relies on his positions, he stated that he never proposed completely cancelling the reasonableness standard (especially regarding appointments) but rather expressed support for adopting an arrangement that is similar to the one that exists in law regarding mayors (a committee that decides). Furthermore, and according to Dotan's proposal – the reduction of the reasonableness standard is still subject to the absence of arbitrary and/or capricious considerations.
According to Prof. Yuval Elbashan (who is considered "conservative" and supports reducing the power of the HCJ) – this bill is "aggressive" and "extreme" because there are no balances in the law (as proposed at the president's house, for example: establishing a committee, review of appointments by ministers, non-review of the appointment of ministers, etc.). According to him, the "new" bill is not a starting point for negotiations but rather constitutes an end point of the law, and in this situation, this is an "unreasonable" law.
Finally, it should be noted that in accordance with various factors, the bill currently proposed does not at all match the agreements (that allegedly did not exist) at the president's house. This is because according to reports, the emerging agreement stated that it would not be possible to overturn policy decisions by the government, however it would be possible to review, in accordance with this standard, appointments made by the ministers themselves; and that agreement regarding this standard would be reached only as part of complete legislation.