The Israeli Law Professors’ Forum for Democracy, an ad-hoc and voluntary group of experts on Israeli law, and specifically Israeli public law, is gravely concern about prospective measures to undermine the independence of the judicial branch of government, to subjugate it to government and to party politics within the executive branch, and to curtail the independence of civil-servant ministerial legal counsel to the government and its ministries. In this position paper we address the proposal to abrogate reasonableness as grounds for judicial review. Following a comprehensive review of the proposal we are of the view that:
● The proposal to abrogate reasonableness as grounds for judicial review of government decisions will result in harm to the weakest sections in Israeli society, who have no means of protecting themselves from government power, and for whom the court is the only resort.
● Judicial review of reasonableness is a vital legal toolfor rectifying flaws in the government’s decision-making process regarding any person under its jurisdiction.
● Reasonableness entails according appropriate weight to the fundamental values of the democratic order in Israel, including justice, equality and good administration, while duly balancing these values against other relevant considerations.
● Over the years, the use of reasonableness doctrine by the court has been cautious and limited, and this ground was relied upon only in instances in which executive discretion was manifestly exercised in a manner flawed to the extreme.
● Without an evaluation of the executive act’s reasonableness, the individual will have no protection against executive action that may have been carried out under authority, but with extreme disregard for individual rights and interests of the general public in Israel.
● Removal of reasonableness as grounds of judicial review may alter the face of judicial review of executive action, review that is crucial for preventing abuse of governmental power and for protecting every individual from arbitrary governmental decisions.
A detailed position paper in Hebrew is available on our website.