When Israeli Supreme Court justices overturned a decision by Prime Minister Benjamin Netanyahu in January to press the Finance Ministry to an ally convicted of tax evasion, some of the justices used a controversial legal concept to block the move.
The appointment was “unreasonable,” they said.
When judges rejected Mr. Netanyahu’s appointment in 2015 of a new deputy health minister, they used the same legal argument.
Irrational
And the decision of an earlier Netanyahu government, in 2012, to reject a particular candidate for the board of directors of the tax authority?
That too was unreasonable.
It is these kinds of judicial interventions – using the subjective legal concept of “reason” – that are at the center of what is widely seen as the most serious domestic crisis in Israel’s history. Mr. Netanyahu’s coalition is close to passing a new law that would prevent the Supreme Court from using the concept of common sense to overturn government decisions.
Since mass protests in March, the coalition has suspended other plans to allow Parliament to overturn the court’s decisions and give the government more control over the selection of the court’s judges. Although the opposition fears that these plans could be revived, the government has no means to implement them until the winter session of Parliament in October.
For the moment, the coalition only continues with a law to limit the use of the court of “reason”, but that move alone was enough to return Israeli society to the edge.
In recent days, doctors have gone on strike in protest, raising the specter of a shutdown of the health system, even if their action lasted only two hours on Wednesday. Army reservists began withdrawing from volunteer duty, threatening Israel’s defense capacity. And tens of thousands of protesters regularly block roads and infrastructure, leading to widespread fears of armed conflict between the government’s critics and supporters.
Opponents of the government’s proposal view the legal concept of reasonableness as a crucial safeguard against government overreach, and a key pillar of Israeli democracy. In particular, they fear that the current government—an alliance of ultraconservatives and ultranationalists—might use reduced judicial oversight to help shape a more religious and less pluralistic society, primarily by awarding jobs and money to pets and allies, and firing officials who oppose them.
“This is about whether the resources of the state will actually be used for the public interest,” said Amichai Cohen, a legal expert at the Israel Democracy Institute, a research group based in Jerusalem. “Will the ministers interpret this elimination of prudence as being permissible to only use the means at their disposal, in their view, for political reasons?”
Supporters of the measure, which Parliament is expected to vote on next Monday, are presenting it as a boon for democracy: a modest limit on the ways an elected government can be thwarted by unelected judges, who in any case will still have other tools to overrule ministers.
“Israel will continue to be a democratic state,” Mr Netanyahu said in a speech on Thursday. “It will continue to be a liberal state.”
To Daniel Friedmann, law professor and former justice minister, the reasonableness concept allows judges to assume too much executive power from officials and ministers, instead of just acting as a check on government decisions.
“In effect, it enables the court to replace all other authorities,” Mr. Friedmann said. “The field of action should be narrowed.”
The concept of reasonableness has become so contentious in part because it has never been defined in a law passed by parliament. Instead, its definition and application has been developed by judges over several decades since the 1960s. Versions of the concept are used by courts in Australia, the United Kingdom and Canada, among others.
In Israel, judges generally consider a decision unreasonable if they conclude that it was made without considering all relevant issues or without giving significant weight to each issue, or by applying too much weight to irrelevant factors.
The Supreme Court used the standard to oppose the appointment of senior civil servants who were involved in covering up the extrajudicial killing of Palestinian militants. The court also cited the standard when it ruled that the government should do more to fortify classrooms against rocket fire from the Gaza Strip. It also used it to order a magistrate to build a Jewish ritual bath and to force the dismissal in 1993 of a minister, Aryeh Deri, who was indicted on corruption charges.
Although “rationality” has been used against governments of all political stripes, Mr. Netanyahu’s coalition perceives it as a particular challenge to their authority.
After Mr Deri returned to government earlier this year, judges said it was unreasonable for him to be appointed to head three ministries – including the treasury – given his long history of corruption convictions. The judges said it was particularly unreasonable given that Mr Deri, a veteran ultra-Orthodox lawmaker, had rejected plea agreement he signed in his most recent corruption trial in 2021, which the judges interpreted as a promise by Mr. Deri to leave political life.
Mr. Deri says that he never promised to leave political life completely, only to leave Parliament briefly; the ambiguity of the agreement was widespread reported then.
In 2015, the Supreme Court said it was unreasonable for Mr. Netanyahu to allow Yaakov Litzman, another ultra-Orthodox lawmaker, to effectively run the health ministry while serving as deputy health minister. At the time, Mr. Litzman was wary of accepting too senior a role in a state that many ultra-Orthodox Jews do not formally recognize.
In 2012, the court ruled that it was unreasonable for the Netanyahu government to refuse to appoint a special candidate for the board of directors of the Israel tax authority. The rejected candidate was appointed by an expert panel, and “stood out for his extraordinary professionalism and extensive education”, the court said.
Researchers say the court has not used the standard as often as its critics claim, and in fact is more likely to throw out petitions to fire government officials than uphold them.
Over the past decade, the court has dismissed petitions – brought by private individuals, civil society groups or political parties – to fire three ministers in Mr Netanyahu’s earlier cabinets, including a previous petition to fire Mr Deri in 2015.
Since 2003, the court has rejected 52 of the 64 petitions it has received to quash a government appointment on the basis of reasonableness, according to recent research by Tachlith, a Tel Aviv research group. Of the 12 petitions the court upheld, only seven were upheld using the reasonableness standard, according to Tachlith.
As a result, some argue that the greatest impact of the concept is invisible and unquantifiable: It forces ministers to consider whether their decisions would survive a subsequent inquiry by the Supreme Court – meaning that its impact is felt most in the minister’s office, before a decision is taken, rather than later in the courtroom.
“You don’t want to do something that will be rejected by the court,” said Natan Sharansky, a former deputy prime minister who headed four ministries in the 1990s and 2000s.
As a result, ministers often consult lawyers before making a decision, Mr. Sharansky said. “Usually, you’re asking for advice: What are the chances that it will be appealed in court and what are the chances that the court will say it’s not reasonable for you to do this or that?”
For critics of rationalization, this is a problem: It could prevent ministers from doing what voters elected them to do. For supporters of the standard, it is an advantage: It discourages ministers from acting in a corrupt or irrational manner.
Mr Sharansky said the concept was too broad and that, in principle, he supported the government’s plan to narrow its application.
But after the plan sparked an increasingly toxic national discourse, he grew concerned about the way the issue had divided society.
“I really believe it was something that could have been useful, but the way it was presented and the way it was pushed made it almost impossible,” he said. “The real drama is not in specific proposals. The real drama is the fact that there is no serious mutual discussion.”
Gabby Sobelman contributed reporting from Rehovot, Israel, and Hiba Yazbek from Jerusalem.