Title: Amendment to Basic Judiciary Law Sparks Controversy in Israel
Subtitle: Public confusion and protests surround the decision to repeal the “reason for reasonableness” clause
The recent approval of an amendment to the Basic Judiciary Law in Israel, titled “Repeal of the reason for reasonableness,” has ignited a fierce debate and sparked widespread protests. Various organizations opposing the legal reform have initiated a campaign to paralyze the state, aiming to pressure the government and coalition to reverse the initiative. However, the true nature of the commotion remains obscure, as only a few understand the implications of the amendment.
The Basic Judiciary Law, which safeguards citizens from questionable decisions made by government authorities, empowers the Supreme Court to issue orders to state and local authorities, their officials and bodies, and other public functionaries to act within the confines of the law. Furthermore, the law allows the Supreme Court to intervene in cases where authorities have been elected or appointed illegally.
However, while the Basic Judiciary Law provides the framework for oversight of government actions, it does not explicitly define which decisions or acts of government authorities can be invalidated or prevented. Over the years, the courts have developed rules of administrative law to guide such interventions. These rules, influenced by the mandatory legal system and the common law of other countries, have shaped the principles of administrative law in Israel.
Some of the common grounds for invalidating decisions include discrimination, arbitrariness, and exceeding authority. It is universally accepted that private citizens can undertake any action not expressly prohibited by law, whereas governmental authorities can only act within the boundaries defined by law. If an authority acts beyond the scope of its authority, the decision it made must be nullified.
Another criterion for invalidating decisions relates to the considerations taken into account by governmental authorities. According to legal precedent, authorities must consider all relevant factors and exclude extraneous considerations. If a significant relevant consideration is disregarded or an irrelevant extraneous consideration is taken into account, the decision can be annulled.
The concept of “probability” also plays a role in administrative law. While not unique to Israeli law, it serves as an auxiliary test in determining if a decision was made in excess of authority, based on discrimination, or influenced by extraneous considerations. If the outcome of a decision is deemed “extremely improbable,” it indicates that the decision was unreasonable. The use of this test is rare, as it is reserved for exceptional cases where no reasonable authority would take such action.
However, in the early 1980s, a significant development in Israeli law occurred under the leadership of Judge Aharon Barak. The notion of “reasonableness” as a determining factor in judicial decisions was introduced in the case known as the “Golden Pages” petition. This ruling concluded that courts should not only consider the relevant factors but also scrutinize the decision itself to determine if it falls within the “area of reasonableness.” If a decision exceeded this area, it could be invalidated, even if all relevant factors were taken into account.
Though initially seen as a technical matter, the impact of this interpretation became apparent 13 years later. During the second government led by Yitzhak Rabin, Minister Aryeh Deri and Deputy Minister Raphael Pinhasi faced indictments. Despite this, Rabin chose not to dismiss them, which led to a petition filed by the Movement for the Quality of Government. The Supreme Court found that legally, Deri and Pinhasi were qualified to serve, but the Prime Minister’s discretion to retain them in their positions was subject to criticism. The court acknowledged the legitimacy of political considerations but held that the balance between those and the public’s trust in government was crucial.
The controversy surrounding the recent amendment arises from concerns about the potential consequences of removing the “reason for reasonableness” clause. Critics argue that it could undermine the oversight role of the judiciary and open the door for government authorities to make unreasonable decisions without accountability. Proponents of the amendment, on the other hand, contend that it will restore a balance between the courts and the government, ensuring that decisions are made within the limits defined by law and avoiding excessive judicial intervention.
As the debate continues, it is clear that the significance of the amendment reaches far beyond a mere technicality. Its implications touch on the delicate balance between governmental authority and public accountability in the State of Israel.