https://www.lawfareblog.com/end-reasonable-governance-israel
The End of ‘Reasonable’ Governance in Israel?
Israeli administrative law is composed mostly of common law or judicially created law, similar to British administrative law from which Israel drew much inspiration. It has been developed by the Supreme Court in a piecemeal manner over the years with the explicit goal of ensuring that officeholders within the executive branch use their powers judiciously. Judicious exercise of power has been defined by ensuring the promotion of the general public interest, protecting human rights, and facilitating good governance, including limiting corruption and the unjustified preferential treatment of special interest groups. Toward this end, the Israeli Supreme Court, sitting as the High Court of Justice, developed an intricate web of grounds for review of executive action. These grounds for review include formal grounds, such as ultra vires (acting without legal authority), conflict of interest, and procedural impropriety. They also include substantive grounds for review, involving improprieties in the manner in which government officials or agencies take into account the interests of affected parties and other relevant considerations. These include discriminatory treatment, taking into account considerations that are irrelevant to the legal authority granted, and adopting “patently unreasonable” (אי סבירות קיצונית) decisions.
Patent unreasonableness as grounds for review is perhaps the most controversial of all grounds for judicial review of administrative decisions in Israel. It was first adopted in Israel in the late 1950s on the basis of the landmark Wednesbury case (1947) in the United Kingdom, in which it was held that an administrative decision is void if it is so unreasonable that no reasonable public authority could have made it. Since the late 1970s, the Israeli Supreme Court developed this doctrine so as to include within in it three principles: First, a patently unreasonable decision is one in which the decision-maker did not weigh all relevant considerations as part of the decision-making process, or assigned excessive weight to one consideration over all other considerations in a way that runs contrary to the public interest or to basic human rights. Second, where there is a range of reasonable decisions that can be taken, rather than just a single plausible decision, the Court shall intervene only if the decision adopted lies completely outside the “margin of reasonableness” (מתחם הסבירות) afforded to public officials. Third, reasonableness is assessed from the point of view of a reasonable official and not from that of the Court.
Critics of the Supreme Court view reasonableness review as proof of judicial overreach and argue that the Court effectively substitutes its own discretion for that of the government. In an influential article, Justice Noam Sohlberg—who is considered the leading conservative justice on the Supreme Court—specified two major concerns with reasonableness review. First, he claimed that the way Israeli courts apply the “patently unreasonable” test is very different from the way the British court applied it in the Wednesbury case. According to Sohlberg, the Israeli Supreme Court developed a ground for review of administrative decision-making that goes beyond the tests applied in common law countries, allowing it to intervene in matters on which reasonable people can disagree (for instance, whether or not to approve plans for a public building before plans for the entire neighborhood have been developed). Second, Sohlberg opined that the application of the patently unreasonable standard in Israeli law requires the Court to balance between competing interests and considerations even where the decision did not infringe basic human rights, was not discriminatory in nature, and was not obtained through an improper procedure. This means, according to Sohlberg, that the Court is involved intensively in policymaking in matters over which it has no legal authority or democratic legitimacy—nor, thinks Sohlberg, does it have the required skills to engage with such matters.
On Feb. 2, Attorney General Gali Baharav-Miara published a detailed memorandum on the newly proposed legal reforms. In it, she discussed, inter alia, allegations concerning the exceptional nature of the patently unreasonable test and took issue with Sohlberg’s first line of criticism. The memorandum maintains that reasonableness review of governmental decisions has evolved in both the U.K. and Australia beyond the Wednesbury test in ways that are generally similar to those found in Israel (especially in certain substantive areas such as decisions affecting basic human rights).
Addressing Sohlberg’s second, and more substantive, line of criticism requires us to evaluate the actual use of the doctrine in the Court’s jurisprudence. Such an evaluation shows that, outside the field of political appointments, the use of the reasonableness review by the Supreme Court raises relatively few difficulties. With regard to political appointments, although the doctrine plays an important role in fighting corruption and promoting good governance, its invocation by the Court remains controversial.
While many petitions submitted to the Court against government decisions allege that the reviewed decision is patently unreasonable, the lion’s share of these petitions involve allegations of specific human rights that have been infringed upon or cases involving discrimination against a specific person or group of persons—specifically, cases that, even according to Sohlberg, should be subject to judicial review. In fact, doing away with the patently unreasonable doctrine in most of the cases where the doctrine has been invoked would simply result in the review being framed differently, on the basis of other grounds for administrative review (such as ultra vires or irrelevant considerations).
Only a few cases reviewed under reasonableness grounds involved a situation where the only allegation made by the petitioners was that the competent government official or agency erred in the balance it struck between the competing considerations it weighed. In the few petitions that were accepted by the Supreme Court under this “pure” application of the patently unreasonable doctrine, the Court almost always pointed to an important public interest that did not receive proper consideration by the decision-maker, such as the need to distribute public resources fairly.
Furthermore, the Court has been exceptionally deferential with respect to some executive decisions. For example, when it comes to applying reasonableness review to discretion exercised by the attorney general as to whether or not to open criminal investigations or submit indictments, the Supreme Court has been slow to intervene. The Court always stressed in such cases that its intervention in such matters will be minimal, and, indeed, it intervened in only a handful of cases. In fact, it seems to us, the authors, that critics of the legal system who are concerned about the broad scope of authority concentrated in the office of the attorney general should have supported expanding the application of patently unreasonable doctrine, so as to rein in the powers of the attorney general.
The story becomes a bit more complicated when it comes to the application of reasonableness review to political appointments—the most controversial use of the doctrine to date. In the early 1990s, the Supreme Court declared that the appointment of a director-general to a government ministry is patently unreasonable, since the appointment was made a short period of time after the appointee admitted that he committed serious crimes (perjury and obstruction of justice), even though he was later pardoned by the president (see the Eisenberg case). The Court reasoned that appointing such a person to a high-level position of authority undermines public trust in government and impairs the quality of the public service. Failing to give due weight to these considerations in the appointment process renders the appointment decision patently unreasonable.
In 1993, this holding was extended to the appointment of government ministers and deputy ministers. In the twin cases of Deri and Pinchasi (both cases, from 1993, dealt with removal from office of a minister and a deputy minister from the ultra-Orthodox Shas party), the Supreme Court declared that appointing people indicted on serious criminal charges to senior political positions is patently unreasonable, and that the prime minister must fire a minister or deputy minister who is indicted while serving in office. These cases are unique because the Knesset included in Basic Law: The Government specific language addressing fitness for service as a minister, referring to having been recently convicted of a serious crime entailing a minimal period of incarceration as a disqualifying criterion, while remaining silent with regard to any disqualifying effects of a criminal indictment. The Court famously distinguished between the general service criteria under the basic law and the reasonableness under administrative law of a specific appointment that meets such criteria: “fitness unto itself, and reasonableness unto itself[.]” This meant that the Court can declare an appointment as illegal under administrative law—that is, patently unreasonable pursuant to the Eisenberg holding—even if the relevant minister and deputy minister meet the statutory service criteria since they were already indicted but not yet convicted. The number of cases in which the court actually intervened in political appointments is small. However, each of these cases garnered enormous public attention and naturally added to criticism of the Court’s conduct and its growing interference in political life and electoral outcomes.
Further complicating this public perception of judicial overreach was the perceived inconsistency with which the reasonableness doctrine was applied. The Supreme Court refused to extend the Eisenberg holding to Prime Minister Benjamin Netanyahu in 2020, determining that criminal indictments brought against him did not warrant his removal. It reasoned that the decision by the Knesset to vote into office a prime minister is a nonreviewable political decision, unlike the decision to appoint a minister, which it said is a reviewable administrative decision. At the same time, the Court did apply the Eisenberg holding recently in relation to Aryeh Deri (who was also the subject of one of the aforementioned 1993 judgments). Most justices were of the view that appointing Deri to the position of a government minister shortly after he was convicted for tax fraud with a suspended sentence of one year of incarceration was patentably unreasonable in the particular circumstances of the case. (They noted that Deri was a repeat offender—his tax conviction in 2022 was his third criminal conviction—and that he made a representation to the sentencing judge that he plans to quit public life in order to induce the judge to impose a lenient sentence.)
The upshot of this short review is that although some aspects of the patently unreasonable doctrine remain controversial, it does serve as a check on the ability of the government to violate basic human rights, discriminate, appoint corrupt officials, and ignore important public interests. Significantly, the doctrine empowers the government’s legal advisers to oversee the process by which governmental decisions are made and to require transparency in decision-making. To satisfy the requirements set by the Supreme Court when applying the reasonableness doctrine, government officials and ministers must demonstrate that they took into account all relevant considerations and conducted a rational and fact-based process of balancing between them.
The Proposals
The new proposal by Minister of Justice Yariv Levin as part of his “judicial reform” package simply declares that courts may not invalidate a decision of the government, minister, or any part of the executive branch on the basis of the reasonableness of the decision. Levin’s proposal thus aims at completely annulling the patently unreasonable doctrine as grounds for review of administrative actions taken by state officials. The proposal submitted by Simcha Rothman, chair of the Constitution, Law and Justice Committee, appears somewhat less extreme. It suggests that the Court may not review the decision of elected officials, the government, or any minister based on its reasonableness, thus limiting the application of the patently unreasonable doctrine to review of decisions taken by unelected officials.
Still, both proposals would significantly limit the ability of the Supreme Court, as well as of government lawyers who monitor compliance with its decisions, to oversee the proper conduct of government activity. Important public interests and basic human rights would not be fully taken into account in what will now be a more opaque government decision-making process, and officials might find it easier to engage in corrupt practices, facing a reduced level of legal scrutiny. As the attorney general correctly maintains in her aforementioned legal memorandum, the complete abolition of the doctrine of patent unreasonableness would not allow the Supreme Court to review even totally irrational decisions, which would have been considered unreasonable according to the more conservative approach to the reasonableness test applied by the court before the 1970s (specifically, before reasonableness review was expanded to include an examination of the balance struck between relevant considerations). In addition, the attorney general noted that Israeli administrative law, which serves as the basis for judicial review of government decisions, is not neatly compartmentalized, and different grounds for review sometimes overlap with and sometimes reinforce one another. Simply removing one of the grounds for review without carefully studying its effect on the other related grounds might put the entirety of Israeli administrative law in a state of legal chaos.
Although Rothman’s suggestion appears at first sight to be less radical than Levin’s, as it is directed only at limiting review of decisions taken by elected officials, it may in effect generate the same practical result. According to general principles of Israeli administrative law, a government minister may retain to himself or herself all the authorities delegated by law to those subordinate to him or her (except authorities of a judicial character). This means that, in practice, the minister could immunize from review under the reasonableness doctrine all controversial decisions adopted in his or her ministry by embracing the decisions as his or hers. Both proposals would also open the gate for corrupt appointments to high government offices and would allow ministers and other senior officials to more easily promote policies that favor the interests of certain groups and special interests while exposing themselves to only limited legal consequences.
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The proposals for annulling the use of the patently unreasonable ground for judicial review of administrative decision-making should be viewed in context of the larger plan put in place to weaken judicial review in Israel. The overarching goal of the proposals is not to limit the Supreme Court’s ability to strike down legislation but, rather, to weaken significantly—perhaps even mortally—the ability of legal institutions to review the legality of governmental action. Changing the composition of the judiciary by implementing changes in the judicial selection committee, weakening the attorney general and the other government legal advisers, and annulling the patently unreasonable doctrine are all directed at “freeing” the government from most of the legal limits that are currently placed on its activity—namely, removing the main checks on its power. While we, the authors, do not exclude the possibility that some fine-tuning of certain aspects of the reasonableness doctrine could be considered, abolishing the doctrine altogether or significantly limiting its application, along the lines proposed by Levin and Rothman, would negatively affect the rule of law in Israel, as well as harm the protection of human rights and the promotion of good governance. Furthermore, the implications for Israeli democracy of the cumulative effects of the different components of the new government’s grand plan of legal reforms are far reaching and extreme—and we will discuss them in our next, and last, article in this series.
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