The current bill to reduce the cause of reasonableness should, on the face of it, put me in a dilemma. On the one hand, I am one of the outspoken critics of the widespread use of the reasonableness grounds in Supreme Court rulings and reducing them in accordance with my criticism is welcome, and on the other hand, I strongly oppose the "legal revolution" that the current government is trying to promote.
Reducing the grounds of reasonableness is a first step in advancing this revolution, and especially in politicizing the appointment of judges, which I have always strongly opposed, since in my assessment it will lead to the destruction of the judicial system, and therefore as a citizen of the state I must speak out against it.
Dr. Gil Limon, Deputy Attorney General, warns against reducing the cause of reasonableness \\ Credit: Knesset Channel
However, the wording of the bill to "reduce" the grounds of reasonableness, which was approved by the Constitution Committee for first reading, exempts me from this dilemma. The arrangement included in the proposal is sweeping and extreme, and means the complete elimination of the grounds of reasonableness, in a manner that in my assessment is liable to severely harm the rights of citizens, and especially the ability of the small citizen to defend himself against the arbitrariness of the government. The grounds for reasonableness as a tool for reviewing decisions have several facets. One is criticism of general policy decisions of the government and another is criticism of decisions of ministers and administrative officials.
My position is that the main problem with the existing reasonableness grounds is that the court applies it to general government policy decisions, such as a decision on the method of fortifying schools in Sderot, a decision to build a new metro line in Gush Dan, or a decision to launch a military operation in Jenin.
The protest against the reform, Kaplan. Photo: None
The Democratic Rationale
With regard to such decisions, there is no room, in my opinion, for criticism of reasonableness. This is because there is no reason to prefer the court's reasonableness analysis over the government's reasonableness analysis. These are decisions of principle and they must enjoy democratic legitimacy, which is given to the government and not to the court, especially since they require professional and technological knowledge, which is found in the government system and not in the court.
Therefore, my position is that decisions made by the government in its plenum – after going through the complex process of approval by the professional echelons – should be exempt from the review of reasonableness.
However, the current bill does not seek to exempt only government decisions from reasonableness review, but also grants immunity from criticism to any decision made by a minister.
According to existing legislation in Israel, almost every decision is defined, or can be defined, as a "ministerial decision," including, for example, a decision to grant an entry visa to Israel or a decision to grant an import license for communications equipment.
The Constitution Committee in a discussion before the vote on reducing the grounds of reasonableness, photo: Oren Ben Hakon
The democratic rationale for reducing judicial review does not apply to such decisions that concern the case of an individual, nor do the strong democratic review mechanisms that exist regarding government policy decisions (the Knesset, the media, public NGOs) work almost entirely on such decisions.
In fact, in these situations, the court is the only refuge of the citizen. Those who will be harmed by the current proposal are not the politicians or the movement for quality government, but the citizen, who did not receive a weapons license, or the beautician whose business license was revoked by the Health Ministry.
In all these cases, the bill would deprive the court of the most powerful tool at its disposal to review the governmental decision, and it would deny citizens the only practical protection available to them against arbitrariness by administrative officials.
Need to resist
Therefore, even those who, like me, criticize the rule of reasonableness should oppose the current bill, which pours the baby along with the bath water. This baby is not the court or "judicial review" but the rights of each and every citizen of the state.
Yoav Dotan is the Chair of Public Law at the Faculty of Law, Hebrew University.
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