Explained: How Israel’s Top Court Could Lose a Key Power to Rein in the Government
Since the formation of the state, the High Court of Justice has been able to block administrative government decisions if it deems them unreasonable. That may end very soon if the Netanyahu government gets its way
Protesters have fought relentlessly for the past six months against the judicial overhaul plans being advanced by Prime Minister Benjamin Netanyahu’s government, so far successfully blocking the ruling coalition from giving itself the power to override Supreme Court decisions, strike down laws and appoint justices.
In the face of its failures thus far, the government has shifted tactics: trying to push through laws one by one.
- What Israel's 'reasonableness standard' is and why axing it is dangerous
- Key judicial coup clause preventing Netanyahu gov't from firing AG, Israeli minister says
- Israel’s unreasonable attack on reason
This week, it is laser-focused on unilaterally eliminating what is known as the “reasonableness standard” – the power of the High Court of Justice to block government decisions it deems unreasonable or implausible.
An “unreasonable” decision is defined as one that disproportionately focuses on political interests without sufficient consideration for public trust and its protection. Taking away that power from the top court would not only appease the judicial overhaul’s advocates, but would strengthen Netanyahu’s grip on power and allow him to take extreme measures without judicial interference.
The best-known recent use of the reasonableness standard was in January when the High Court disqualified Shas Chairman Arye Dery from serving as health and interior minister due to his 2022 conviction for tax evasion, corruption as a public official, bribery and fraud.
The basis of the disqualification was that his appointment was “unreasonable in the extreme,” as Dery has been convicted three times of criminal offenses and failed in his previous public positions to “serve the public loyally and lawfully.”
That decision put Netanyahu in the uncomfortable position of having to deny a ministerial position to one of the most loyal and powerful allies in his coalition. Reinstating Dery is sure to be one of the first moves if the reasonableness standard is eliminated.
Blocking the High Court’s ability to reverse government decisions could also potentially pave the way for Netanyahu to fire Attorney Gali Baharav-Miara. She has been a thorn in his side regarding the judicial overhaul and in the management of his criminal trial without fear of the court challenging that decision.
Judicial overhaul architects Simcha Rothman, left, and Justice Minister Yariv Levin talking in the Knesset earlier this year.Credit: Oren Ben Hakoon
What is the reasonableness standard?
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 in 1948.
The reasonableness standard only applies in administrative, not constitutional, law and therefore cannot be used to strike down legislation. This means the standard was applied accurately when preventing Dery’s appointment, which is administrative in nature.
Reasonableness provides judicial review of all government decisions and allows judges to disqualify extreme decisions they believe were not made in the public interest but because of outside forces. This protects citizens from government moves that are irrational, biased or stemming from a conflict of interest.
What are some examples of its use?
Shas leader Dery stands at the center of one of its most-cited examples. In 1993, the High Court ruled that Dery and his deputy, Rafael Pinchasi, had to be fired from Yitzhak Rabin’s left-wing government after being indicted for serious offenses.
The ruling established that in nearly all circumstances, a person against whom an indictment has been filed cannot serve as a minister. If an indictment is filed while a person is in office, they must be dismissed.
Shas leader Arye Dery in the Knesset last March.Credit: Olivier Fitoussi
In January 1986, the then-Religious Services Minister Zevulon Hammer decided to cancel the appointment of a woman on the Yerucham Religious Council, on the grounds that women cannot serve as religious council members. The decision was rejected by the High Court on the grounds that it was unreasonable.
Although many of the overhaul’s most enthusiastic proponents are in the Orthodox and ultra-Orthodox communities, the reasonableness standards have also been used to protect their interests. The most recent example: in July 2021, then-Finance Minister Avigdor Lieberman decided to stop subsidizing day care for tens of thousands of children of full-time yeshiva students, and make the policy effective in the middle of a school year. The High Court ruled that the support could not be taken away without a full year’s transition, declaring in its decision that Lieberman’s move did “not properly balance the relevant interests, and exceeds the realm of reasonableness.”
A famous ministerial decision rejected by the High Court using the reasonableness standard occurred in 2018 when Lieberman, then the defense minister, decided to prevent 110 Palestinians from participating in the Israeli-Palestinian Remembrance Day ceremony on the grounds that it was a “desecration of Remembrance Day.” Ceremony organizers petitioned against the decision on the grounds of unreasonableness and the judges ruled in their favor.
Are there major cases in the High Court that might be affected by the elimination of the reasonableness standard?
There are several. One petition to the High Court has been filed against National Security Minister Itamar Ben-Gvir. A coalition called Tag Meir argued that his appointment was unreasonable and should be nullified, based both on Ben-Gvir’s criminal past and because he “is a serial initiator of creating public disorder, with actions accompanied by verbal violence, severe racism and hatred. He has been engaging in such behavior for many years, including during his tenure as a lawmaker.”
Another petition, filed by the Movement for Quality Government, challenges the decision of the ombudsman and State Prosecutor Amit Aisman not to open an investigation regarding a possible agreement between MK Idit Silman and the Likud slate. In April 2022, Silman bolted the then-coalition where she served as a top member of the Yamina party, leading to the collapse of the anti-Netanyahu government. In the next election, she was placed on the Likud slate and currently serves as environmental protection minister. According to the petition, the failure to open a probe was unreasonable “in view of the serious damage to criminal procedure and the public’s trust in law enforcement authorities and elected officials.”
MK Idit Silman in the Knesset earlier this year.Credit: Noam Moskovitz, Knesset Spokesman's Office
The High Court is also considering several petitions involving LGBTQ rights in Jerusalem. On Wednesday, an appeal is set to be heard that was filed by the Open House (the headquarters for resources and support for the city’s LGBTQ community).
The appeal challenges the Jerusalem Administrative Affairs Court decision to reject a petition regarding financial support from the Jerusalem Municipality for the years 2020 and 2021.
Attorneys for Open House claim budgetary discrimination and violation of the financial support procedure, which is intended to ensure that local authorities provide financial support to public institutions in an egalitarian and transparent manner. According to the petitioners, the municipality’s conduct exceeds the realm of reasonableness.
What does the proposed law say, and what will happen if it passes?
It states that courts would not be able to invalidate any decision made by elected officials – government, prime minister, mayor, minister or Knesset member – on grounds of “reasonableness,” including decisions on appointments and dismissals.
Abolishing the reasonableness standard will significantly reduce judicial oversight of the government and its officials, and make it difficult for High Court justices to intervene when elected officials make arbitrary, extreme or corrupt decisions – even those that violate human rights.
However, even if the reasonableness standard is abolished, other paths of legal recourse to challenge government decisions do exist. The courts, led by the High Court, will be able to review government and ministerial decisions using other doctrines of administrative law. These include proportionality, discrimination, conflict of interest, bias, lack of factual basis, arbitrariness and extraneous considerations.
Dr. Amir Fuchs, a senior researcher at the Israel Democracy Institute, says 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.” However, he maintains that doing away with such an important standard is throwing the baby out with the bathwater.
“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 … leaves citizens in a position in which they have no power to protect themselves from a problematic decision made by the executive branch,” he says.
What will happen with Dery?
If the law is approved and Netanyahu reappoints Dery as minister, the High Court will not be able to prevent the appointment using the reasonableness standard as it did last January. However, it may be able to prevent it using other principles – most likely the Estoppel principle, which was already cited by some of the justices in January’s verdict.
Estoppel is a legal principle that prevents someone from asserting a claim or right that contradicts what has previously been said or done, or what has been legally established as true.
In Dery’s case, three High Court justices ruled in January that due to Dery’s promise to a magistrate’s court that he would temporarily withdraw from political life as part of his plea deal, he cannot now claim before the High Court that he has the right to return to politics as a senior minister.
In the News
Paid by Inter Real Estate