The battle for reasonableness

It is difficult to predict the upcoming ruling of the High Court of Justice concerning the matter of the plea bargain with former president Moshe Katsav and if that ruling will be unanimous. What is clear is that at its nexus will stand the magic word of Israeli jurisprudence - reasonableness.

Will the plea bargain by which Katsav will be tried on minor infractions, relative to the serious charges in the original indictment, be found to be within the "bounds of reason"? Will the right to present her case that was given to the complainant withstand the test of reason? Ostensibly, it should be clear that the authorities must act reasonably, and the court is the reasonble forum to decide whether it is doing so. In fact, this recognition has not yet been internalized, and state prosecutors invest great efforts to liberate themselves from the burden of reason. That is the case in the state's response to petitions in the Katsav case and in other matters.

First of all, the argument is commonly heard that "ordinary" lack of reasonableness is not grounds to invoke judicial oversight; lack of reasonableness must be "manifest." Second, it is argued that the High Court must not relate at all to a theoretical concept such as "reasonableness." Rather, it should make do with examining whether the authorities acted within their legal powers and did not discriminate improperly or invoke extraneous considerations.

This argument, which seeks to take away from the High Court a significant means of defending the individual citizen against the arbitrariness of the state, has recently found support in the minority opinion of Justice Asher Grunis, in a ruling that rejected the petition against the appointment of Haim Ramon to the cabinet in light of his conviction of a "consensual indecent act." Justice Ayala Procaccia, expressing the majority opinion, rejected the petition after justifying the reasonableness of the appointment, while Grunis was willing to forego considerations of reasonableness entirely.

Grunis' approach, unusual among justices but accepted by the justice minister, is that the obligation to reasonableness intensifies judicial discretion, and thus use should be made of it only in extreme cases, where damage to human rights is at stake, but not to criticize appointments in public service.

Procaccia pointed out rightly that the limitation on the obligation to reasonableness might create a "vacuum" in judicial oversight if the High Court cannot strike down a decision in a case in which not enough weight has been given to the consideration of relevance. Justice Edna Arbel believed that such limitation of judicial oversight will create a situation in which the public will find itself vulnerable to the authorities.

The battle over reasonableness is the battle between a court that is activist in ensuring the rule of law and a passive court, which does not often intervene in the decisions of the executive branch. We understand the importance of the grounds of reasonableness only if we are aware that a good number of administrative decisions brought before the High Court are made by the executive branch in the framework of its formal legal powers, in good faith and without extraneous or obviously false considerations. And yet the key question is whether reasonable weight to relevance was given in making the decision. Without scrutinizing this weight, which is at the basis of reasonableness, the decisions at the end of the 1980s to abrogate military censorship of plays - which did not give reasonable weight to freedom of expression - would not have been made. The attorney general's decision in 1990 not to take the banks to court over stock manipulations because of lack of "public interest" would also not have been reversed. Petitions against the route of the separation fence, which did not give sufficient weight to the suffering of residents, would have been rejected.

Reasonability, alongside proportionality, have made the High Court the bastion of the individual citizen when he or she has an argument with the state. The High Court has rejected many petitions, sometimes out of too much self-restraint because of its tendency not to intervene in decisions of administrative authorities which are of an "ordinary" lack of reasonableness, but not an extreme lack thereof.

The High Court's readiness to intervene only when the state's action is manifestly unreasonable is not necessarily helpful in keeping the executive branch in the white zone of reasonableness.