The Israeli Supreme Court abolished the doctrine of "reasonableness" today, Monday, accelerating the disintegration of the government, especially since the law had previously stirred significant controversy. What is this doctrine?
In July, the Israeli Knesset passed new legislation as part of the controversial judicial reform project, which aims to limit the Supreme Court's ability to review the "reasonableness" of government decisions. The "reasonableness argument" is a key component of a plan adopted by the right-wing Israeli government led by Benjamin Netanyahu, which has faced widespread opposition to this project, including from the United States. The law eliminated one of the tools the Supreme Court used to annul government and ministerial decisions deemed “unreasonable.”
The court announced that eight out of 15 judges ruled in favor of abolishing the law. Following the law's repeal, the Likud party, led by Prime Minister Netanyahu, expressed its objection, stating that the move "contradicts the will of the people for unity, especially during wartime."
**Protests**
In recent months, hundreds of thousands of Israeli citizens in a country with over nine million inhabitants have taken to the streets of Tel Aviv and other major cities each weekend to protest this project. The "reasonableness" clause was drafted by coalition member Simcha Rothman and passed by the Knesset's Constitution, Law, and Justice Committee at the beginning of this month after nine sessions were held to prepare the final text of this controversial amendment.
The Knesset approved the bill in its first reading on June 11 with a vote of 64 to 56, and the law was passed in its second and third readings, necessary steps for it to become effective. Netanyahu and his allies argue that the judicial reform will reduce the overreach of un-elected judges in the decisions of the elected government. Conversely, critics believe that the project will dismantle essential checks and balances that support Israeli democracy.
**What is the "Reasonableness" Clause?**
Several countries, including the United Kingdom, Canada, and Australia, apply the "doctrine of reasonableness" in their judicial systems, as reported by CNN. This doctrine is commonly used by courts to determine the constitutionality or legality of a specific legislation, allowing judges to ensure that decisions made by government officials are "reasonable." In Israel, this clause eliminates the Supreme Court's ability to review the "reasonableness" of government decisions.
Under the new law, the government will be able to appoint and dismiss public sector officials without judicial intervention. Prior to the enactment of this law, the Supreme Court exercised judicial oversight over the various arms of the executive authority represented by the government, its ministries, and affiliated official bodies. However, the new amendment will grant the government broader authority in appointing judges themselves and will particularly affect the appointment of ministers.
In January, a decision by the Supreme Court forced Netanyahu to dismiss his second-in-command and closest ally, Aryeh Deri, who was convicted of tax evasion after a ruling by the Supreme Court. According to the Israeli newspaper Haaretz, this clause gained significant importance in the country after the Supreme Court removed Deri, who was both the Minister of Health and the Interior Minister. The basis for Deri's removal was his conviction on three counts of criminal offenses and his failure in past public positions to "serve the public faithfully and legally," according to the same newspaper.
According to Amir Fox, a senior researcher at the Israel Democracy Institute, the "reasonableness" standard refers to the balance between political and public interests in decision-making. Therefore, an "unreasonable" decision is one that "disproportionately focuses on political interests without sufficient consideration for public trust and protection," Fox told Haaretz.
**What is the History of "Reasonableness"?**
The use of the "reasonableness" standard as a basis for annulling government decisions has a long history in British law and has been part of the Israeli legal system since the establishment of the state in 1948, according to Fox. British common law had a significant impact on the development of Israeli law during the mandate period (1920-1948), including the reasonableness standard.
During that time, the British mandate authorities introduced English law into the legal framework of the land that later became the state of Israel. The legal system in Israel is influenced by Jewish law (Halakha), British common law, and principles adopted by other Western legal systems, according to the American Jewish Committee (AJC), a global organization defending the Jewish people.
This organization states that Jewish law has a long history of emphasizing "reasonableness and fairness" in legal decision-making. The principle of "derech eretz" in Hebrew (meaning the way of the land) in Jewish law includes moral behavior and reasonable conduct, guiding individuals to act in a fair, just, and considerate manner towards others.
While it was rarely applied during the first decades of Israel's history, the reasonableness standard was used more frequently in the 1980s and 1990s, according to researcher Fox.
