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פורום המרצות והמרצים למשפטים למען הדמוקרטיה

منتدى محاضري القانون من أجل الديمقراطية

The Israeli Law Professors’ Forum for Democracy

פורום המרצות והמרצים למשפטים למען הדמוקרטיה

منتدى محاضري القانون من أجل الديمقراطية

The Israeli Law Professors’ Forum for Democracy

Summary of Position Paper No 50: The proposal to revoke the standard of reasonableness

עודכן: 10 ביולי 2023

· The proposal currently being advanced by the Chair of the Constitution, Law and Justice Committee, to revoke the standard of reasonableness, is identical to that which he presented six months ago.

· The position of the Forum is that this proposal is illegitimate, and its legislation should be strenuously opposed. Implementing this proposal is liable to cause severe damage to the quality of governmental acts and to the ability to prevent personal and institutional corruption. It will undermine the principle of separation of powers, the public interest, and the guarantee of trust in public authorities.

· Despite the various controversies in case law and in academic literature over the way in which the Court applies the standard of reasonableness, they provide no basis for the proposal to eliminate, by law, the entire standard of reasonableness as applied to decisions by public bodies (such as the government, ministers and elected officials), making no distinction between different kinds of decisions, and insulating all such decisions – far-fetched and arbitrary though they might be – from any kind of judicial review as to their reasonableness. This is an extreme proposal. No similar model has been proposed or adopted in the literature or in case law.

· The proposal exempts these public bodies from all judicial review on the basis of the standard of reasonableness, even when their decisions do not establish broad value-laden policies, and even when they are far-fetched and arbitrary. This both deviates from well-accepted doctrine and is diametrically opposed to the rule of law.

· Codification of administrative law should be achieved through legislation of norms governing the administration, not by setting limits to the authority of the Court. All such discussions must be clearly distinct from the narrow interests of the current government and the current coalition, and therefore implementation of any such law must be delayed until the next Knesset is elected, or must be approved by an especially large majority.

· The attempt to adopt this law solely with the support of the coalition, in the face of tremendous public controversy, and with no appropriate professional procedures to investigate the need for such legislation and the ways in which administrative discretion and its judicial review should be regulated, raises serious concern that the entire process is intended to exempt the current government from judicial review and to allow it to make decisions that ignore the public interest and promote narrow interests.

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