Top of page

Article Israel: Legislation Abolishes Reasonableness as a Standard for Judicial Review of Government's Decisions

On July 24, 2023, the Knesset (Israel’s parliament) adopted Basic Law: the Judiciary (Amendment No. 3). Basic laws are considered chapters in Israel’s future constitution. The amendment constitutes one of the four elements of the initial stage of the government’s controversial reforms announced by Minister of Justice Yariv Levin in his press conference of January 4, 2023.

Text of the Amendment Law

The amendment states:

Notwithstanding the provisions of this basic law, those who have jurisdiction by law, including the Supreme Court sitting as the High Court of Justice, will not consider the reasonableness of a decision of the government, the prime minister, or any other minister, and shall not issue an order in this regard. In this section, ‘decision’ means any decision, including regarding appointments or a decision to refrain from exercising any authority.

 Background to the Amendment Law

The standard of reasonableness applies under Israel’s administrative law to invalidate decisions by an elected official or public official on the grounds that the decision is extremely unreasonable. This standard, which originated in Britain, has been adopted in Israeli law in Supreme Court rulings but not in legislation. The standard is used by the court to examine whether the decision of a governmental authority meets the requirements of reasonableness or is extremely unreasonable.

Critics argue that the standard of review enables the court to replace the discretion of the authority with the judges’ views. Judges in Israel are currently not elected. Instead, they are selected by a committee that is composed of representatives of the judiciary and the bar association, as well as by members of the government and the Knesset. Giving the government control in selecting judges is another element of the government reforms.

Opponents of abolishing the standard argue that it allows for oversight of governmental decisions that are arbitrary or capricious. For the court to overturn a governmental decision it must be clearly and extremely unreasonable. Proponents have highlighted concerns previously expressed by Supreme Court justices on the scope of application of the standard. None of the justices, however, have called for completely abolishing the standard by way of legislation.

Categories of Decisions Previously Voided for Lack of Reasonableness

The Supreme Court sitting as a High Court of Justice has previously voided governmental decisions in exceptional cases involving official appointments and policy. A recent example of this is the court’s 10–1 extended panel ruling of January 18, 2023, voiding Prime Minister Benjamin Netanyahu’s appointment of Aryeh Deri, leader of the Shas party, to be minister of the interior and minister of health. Most of the justices based their decision on the determination that Deri’s multiple convictions and his latest sentence made his appointment extremely unreasonable. Some of the justices made their decision on the basis of the principle of estoppel created by Deri’s misrepresentation to the court during his sentencing.

The court has similarly invalidated governmental policy decisions. For example, in 2007, the court invalidated a decision by the defense minister not to shield classrooms in schools in the city of Sderot, which borders Gaza, but to make do with the “protected areas” method despite the immediate danger to the classrooms. Under this method, which provides protection to some but not all school classrooms, students in unprotected classrooms are able to “reach the protected area when they hear a warning that a ‘Qassam’ rocket has been fired.” In an earlier case in 1987, the court voided a decision by the director general of the Ministry of the Interior not to approve the building plans for a stadium in Jerusalem, which was opposed by ultra-Orthodox elements. The plans were rejected partly on the grounds that a comprehensive master plan for the area was required. The court determined that acceptance of the director general’s position might unjustifiably delay the construction of the stadium, and it was therefore unreasonable.

Challenges to the Constitutionality of the Amendment Law

On September 12, 2023, the Supreme Court conducted a hearing with an unprecedented panel of 15 judges on eight of the many petitions filed seeking to cancel the amendment to Basic Law: the Judiciary. The court has never struck down a basic law or an amendment to it. In a ruling rejecting petitions against the Nation-State Basic Law in July 2021, however, the then court president, Esther Hayut, explained that intervention was permissible in an extreme case in which the content of the law negates Israel’s very existence as a Jewish and democratic state, which are in her view “the minimal nuclear characteristics of the State of Israel.”

The court is expected to render a decision on the constitutionality of the amendment law in the next few months.

Ruth Levush, Law Library of Congress
October 25, 2023

Updated December 28, 2023, to correct a typographical error in the second sentence of the article.

Read more Global Legal Monitor articles.

About this Item

Title

  • Israel: Legislation Abolishes Reasonableness as a Standard for Judicial Review of Government's Decisions

Online Format

  • web page

Rights & Access

Publications of the Library of Congress are works of the United States Government as defined in the United States Code 17 U.S.C. §105 and therefore are not subject to copyright and are free to use and reuse.  The Library of Congress has no objection to the international use and reuse of Library U.S. Government works on loc.gov. These works are also available for worldwide use and reuse under CC0 1.0 Universal. 

More about Copyright and other Restrictions.

For guidance about compiling full citations consult Citing Primary Sources.

Credit Line: Law Library of Congress

Cite This Item

Citations are generated automatically from bibliographic data as a convenience, and may not be complete or accurate.

Chicago citation style:

Levush, Ruth. Israel: Legislation Abolishes Reasonableness as a Standard for Judicial Review of Government's Decisions. 2023. Web Page. https://www.loc.gov/item/global-legal-monitor/2023-10-24/israel-legislation-abolishes-reasonableness-as-a-standard-for-judicial-review-of-governments-decisions/.

APA citation style:

Levush, R. (2023) Israel: Legislation Abolishes Reasonableness as a Standard for Judicial Review of Government's Decisions. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2023-10-24/israel-legislation-abolishes-reasonableness-as-a-standard-for-judicial-review-of-governments-decisions/.

MLA citation style:

Levush, Ruth. Israel: Legislation Abolishes Reasonableness as a Standard for Judicial Review of Government's Decisions. 2023. Web Page. Retrieved from the Library of Congress, <www.loc.gov/item/global-legal-monitor/2023-10-24/israel-legislation-abolishes-reasonableness-as-a-standard-for-judicial-review-of-governments-decisions/>.