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Israel’s ‘Reasonableness’ Standard Is in the News. But What Is It and Why Do We Need It?

It stands at the center of the government’s plan to undermine the judiciary and stars in this week’s political disaster for Prime Minister Netanyahu. But what exactly is the ‘reasonableness’ standard roiling Israel?

Samuel Sokol is a freelance journalist based in Jerusalem. He was previously a correspondent at the Jerusalem Post and has reported for the Jewish Telegraphic Agency, the Israel Broadcasting Authority and the Times of Israel. He is the author of Putin’s Hybrid War and the Jews.
Sam Sokol
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Arye Dery leaving his home following the Israeli Supreme Court announcement disqualifying him being a minister, Wednesday.
Arye Dery leaving his home following the Israeli Supreme Court announcement disqualifying him being a minister, Wednesday.Credit: Ohad Zwigenberg
Samuel Sokol is a freelance journalist based in Jerusalem. He was previously a correspondent at the Jerusalem Post and has reported for the Jewish Telegraphic Agency, the Israel Broadcasting Authority and the Times of Israel. He is the author of Putin’s Hybrid War and the Jews.
Sam Sokol

On Wednesday, Israel’s High Court of Justice disqualified Shas party chairman Arye Dery from serving as health and interior minister on the basis that his appointment was “unreasonable in the extreme” as he has been convicted three times of criminal offenses and failed in his previous public positions to “serve the public loyally and lawfully.”

Dery’s convictions include tax evasion, corruption as a public official, bribery and fraud.

The decision, and the legal doctrine behind it, sparked immediate backlash on the right and put Prime Minister Benjamin Netanyahu in a political pickle as he is now forced to either replace Dery – which would likely cause tension within his coalition – wait for him to resign, or defy the law and keep him as a minister.

This isn’t the first time that members of the current coalition have come out against this legal standard of reasonableness, with Justice Minister Yariv Levin declaring earlier this month that, as part of his plan to limit the power of the country’s judiciary, he intended to put into place legislation to prevent the High Court from blocking government decisions that it found to be unreasonable.

“A court of law means there are laws that are written down and exist and are interpreted by the court. That’s the fundamental justification for judicial review,” says Professor Eugene Kontorovich, a director at the Kohelet Policy Forum, a right-wing organization whose stances on neutering the judiciary have been a key input into the government’s planned changes. He declares that a ruling based on a decision’s reasonability “simply has no basis in statute or basic law.”

However, using the standard of reasonableness as grounds for vacating a government decision has a long history in British law and has been part of the Israeli legal system since the establishment of the state, explained Dr. Amir Fuchs, a Senior Researcher at the Israel Democracy Institute.

While it was rarely used during the first decades of Israel’s history, the reasonableness standard became much more common in the 1980s and 90s, he explained, noting that this argument only applies in administrative and not constitutional law and cannot be used to strike down legislation. This means the standard was applied properly in the case of preventing Dery’s appointment, which is administrative in nature.

According to Dr. Fuchs, by definition, the standard of reasonableness refers to a balance between political and public interests in decision-making. An ‘unreasonable’ decision is therefore one which “disproportionately focuses on political interests without sufficient consideration for public trust and its protection.”

Nevertheless, Fuchs says the standard “was never legislated,” but over the years “became the law – common law.”

A good example of this, he said, is the court’s 1993 ruling involving Dery himself.

At the time, the court ruled that Dery and his deputy Rafael Pinchasi must be fired from Yitzhak Rabin’s left-wing government after being indicted for serious offenses, a precedent which Fuchs said shows that this week’s decision was not politically motivated.

Another example is when in 2007 the court declared that then-Prime Minister Ehud Olmert’s government’s decision not to reinforce classrooms in Sderot against missile attacks was “unreasonable,” as it took too long for students to find cover outside. The court then ordered Olmert to immediately reinforce them.

And while Fuchs does acknowledge that the standard of reasonableness has been applied in an “arbitrary way” in the past and “gives a lot of discretion and power to the beliefs of the court,” he maintains that doing away with such an important standard is “throwing the baby out with the bathwater.”

“So we can argue about and scrutinize and have criticism of some of the decisions of the court but to totally wipe out the grounds [of unreasonableness] is a big mistake and in some instances, like the Sderot case, it would leave citizens in a position in which they have no power to protect themselves from a problematic decision made by the executive branch.”

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