The coalition and opposition shouldn’t give up on the reasonableness standard in judicial reform talks, the NGO Movement for Quality Government in Israel urged President Isaac Herzog at the weekend.
The public statement followed a letter by MQG to the political leaders sent on Friday in response to media reports about compromises made about the reasonableness standard, which allows the judiciary to intervene in administrative decisions that are beyond the scope of what a reasonable and responsible authority would undertake.
Haaretz reported on Thursday that the two sides were close to an agreement, in which the legal principle would not apply to government decisions, but to government appointments.
“The reasonableness standard is a necessary and key judicial tool against various decisions that harm citizens,” said MQG. “The attempt to reduce the reasonableness standard is to reduce the legal ability of the state’s citizens to oppose different government actions that seek to harm them and their most basic rights.”
MQG argued that the negotiating parties do not have a right to degrade the reasonableness standard. Without a set constitution, citizens had few protections from administrative action against them by the authorities, and Israelis need the law to fill this legal gap.
Israeli government expanded administrative action in fields
According to the NGO, since the 1980s the government has expanded its administrative action in fields as broad as local government, environmental protection, construction zoning and more. The reasonableness standard is necessary to counter the increasing volume of administrative actions.
The reasonableness standard is a long-accepted part of Israeli legal tradition, the NGO contended, recognized since the dawn of the state. The principle was inherited from English common law through the British Mandate.
“The parties in the negotiations must not give up on the reasonableness standard, and we call on the representatives of the opposition and coalition not to give up on an inch of the citizens’ ability to defend themselves against the government’s predation,” said MQG attorney Hiddai Negev.
While there has been no legislation proposed by the coalition addressing the reasonableness standard, Justice Minister Yariv Levin had called for its complete abolition when he announced the judicial reforms in the first week of 2023.
Critics argue that the application of the standard is subjective, and is an arbitrary legal tool used by a court that had already grown too powerful. Proponents of the reasonableness standard note that the clause is rarely employed by the court against government decisions, and requires extreme conditions to apply.
Media reports that the standard would apply to government appointments and thus would impact the return of Shas chairman Arye Deri to a ministerial position. The reforms were announced right before a hearing on convicted felon Deri assuming the roles of interior and health minister despite his past prison term. The move was facilitated by a change of Israel’s quasi-constitutional Basic Laws, commonly known as the Deri Law amendment.
The High Court of Justice accepted petitions against the decision. The court ruled against Deri’s appointment based on the reasonableness standard, and Prime Minister Benjamin Netanyahu was forced to remove him from office.
Prior to the April Knesset recess, the coalition sought to pass a second Deri Law, which would prevent the High Court from using the reasonableness standard against government appointments.
Judicial reform talks are set to continue, and while the coalition and opposition have been able to compromise or find common ground on several provisions of the legal overhaul, the Judicial Selection Committee continues to be a point of contention.