By Richard B. Weisberg, Esq. ’78

Before the war in Gaza or the joint attack on Iran, the controversy that chiefly occupied the majority of public affairs in Israel concerned legislation enacted in the Knesset, Israel’s parliament. The legislation related to several matters concerning the power and composition of the judiciary, and included these two basic issues: (1) a doctrine followed by the courts in Israel to challenge certain governmental actions on the basis of “reasonableness,” and (2) the ability of Israel’s Supreme Court to nullify Knesset legislation as being in violation of the Basic Laws of Israel, in a sense exercising judicial review of legislation. On July 24, 2023, after months of demonstrations and debates, the Knesset passed legislation to eliminate the doctrine of reasonableness, and declare “the non-justiciability of basic laws”prohibiting a court, including the Supreme Court, from addressing, directly or indirectly, a question regarding the validity of a basic law. As will be discussed below, this legislation was ultimately held by the Supreme Court of Israel to be unenforceable.

I have observed that nearly all of the news reports and public discussion concerned public demonstrations for and against the legislation commented on how these disputes were widening fissures within Israeli society beyond divisions that have historically been a part of the nation’s life. Press reports and political commentary paid little attention, on the other hand, to details about the underlying doctrines that brought about the Knesset actions. In my view, questions concerning the doctrine of reasonableness, where it comes from, and why it has been adopted by various courts in different countries are important because they reveal how serious the absence of the doctrine may be to Israel’s democracy in the future. The same may be said for the issue of the Supreme Court of Israel’s power of judicial review of legislation.

Reasonableness Doctrine

In order to understand the reasonableness doctrine and how and when it was adopted in Israel, it is necessary to briefly examine the origins of the body of law that operated in the country at the time of its modern-day founding. After Israel declared its independence in 1948, it was immediately engulfed in war. With the pressures of defending the new nation, it was determined by the provisional state council, which preceded the first Knesset, that the law that existed in what became Israel on the eve of the establishment of the state would remain in force to the extent that it did not contradict the laws of the state, and the changes resulting from the establishment of the state and its authorities. This inherited law included Ottoman laws that were absorbed into the laws of the British mandate, religious laws, laws of the British mandate and, most significantly for our purposes, British court-made laws – including, the principles of common law and the foundations of the laws of equity practiced in Great Britain.

Turning to relevant British law, the reasonableness doctrine appears to have entered into the common law in the case of Associated Provincial Picture Houses v Wednesbury Corporation Ltd (1948) 1 KB 223. In this case, the local town council, acting under a statute enacted by Parliament, adopted a restriction on the age of children who may attend a movie on Sunday. This restriction was attacked by the plaintiff as being invalid because it should be deemed “unreasonable” in light of British law and custom (Ibid.) The appellate court summarized the basis upon which a court may strike down an administrative action as being “unreasonable”:

“The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere.”

In my view, the language in the Wednesbury opinion does not result in a very definitive test in applying the doctrine. The court seemed to be saying that an administrative authority fails the test of reasonableness if, in its decision making, it considers matters extraneous to factors that should be considered, ignored issues that should be been considered, or upon weighing the facts and issues before it, nevertheless reached a decision “so unreasonable that no reasonable authority could ever have come to it.” This holding was reiterated in a case coming before the House of Lords, Council of Civil Service Unions (1985) AC 374, and described the doctrine as applying to a decision “so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.” Again, not a particularly specific test. 

Turning to a common law jurisdiction closer to the United States, the Canadian Supreme Court had reason to examine the doctrine in C.U.P.E. v N.B. Liquor Corporation (1979) 2 SCR 227. In that case, the court held that it could support striking down an administrative action if the administrator was shown to have acted in bad faith, based a decision on extraneous matters, failed to take relevant factors into account, breached the provisions of natural justice or misinterpreted the provisions of a statute so as to embark on an inquiry or answer a question not remitted to it. In language familiar to an American lawyer, presumably in an effort to clarify the test, the chief justice then posited the following question: “Put another way, was the Board’s interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review?” 

The Canadian Supreme Court developed the doctrine of reasonableness more clearly in Dunsmuir v. New Brunswick (2008) 1 SCR 190. In a case involving a former government employee appealing his dismissal by the provincial government, the court considered whether a first level hearing officer acted, among other things, unreasonably, when he moved to reinstate the employee. In denying the appeal, the court declared that in applying “judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.  But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” The court expressly rejected the concept that “reasonableness” and “rationality” are equivalent noting that a decision may be both “coldly rational” and “fall foul of unreasonableness.”

Significantly, the doctrine has been adopted in other common law countries including Australia, India, New Zealand, Ireland, Singapore, and Pakistan.

While at least one court operating during the British Mandate applied the reasonableness doctrine in a limited fashion, the earliest case that I could find where the doctrine was applied by an Israeli court to administrative actions, generally, was a case decided in 1959, Attorney General v. Dizengoff & Co., Ltd., CA 311/57 (1959), involving a question of whether or not a port surcharge should be applied retroactively. In that case, the court stated that “the test of reasonableness applies equally to all manner of delegated legislation by an administrative body ….” The court stated the test for reasonableness, as follows:

“[If] the court finds that the delegated legislation is so illogical, unreasonable and intolerable that a sensible person would not conceive that a reasonable Minister would be capable of making it, one would then have to say that the legislature never intended to grant such power to the Minister. Such delegated legislation is unreasonable and ultra vires.”

While perhaps imprecisely stated, the doctrine of reasonableness entered Israeli law and is part of its jurisprudence today.

Judicial Review

If the Israel judiciary had limited its power to the doctrine of reasonableness, the present controversy may never have arisen. However, the Supreme Court of Israel went much farther. With respect to the issue of judicial review, it is necessary to confirm that the practice of judicial review of legislative enactments does not exist in common law countries in the way in which it has evolved in the United States. Judicial review, established by the U.S. Supreme Court decision in Marbury v. Madison (1803) 5 U.S. (1 Cranch) 137, held that American courts have the power to strike down laws and statutes they find to violate the Constitution of the United States. In the eighteenth century, British legal writer Sir William Blackstone commented that if Parliament positively passed a statute that was unreasonable, there was “no power that would control it” and that any attempt to “seek judicial power above that of the legislature . . . would be subversive of all government.”

In order to fully understand how this expansion of judicial power occurred in Israel, it is first necessary to remark on Justice Aharon Barak. 

Aharon Barak is an Israeli lawyer and jurist who served as President of the Supreme Court of Israel from 1995 to 2006. Prior to this, Barak served as a Justice of the Supreme Court of Israel, also referred to as the High Court of Justice, from 1978 to 1995, and before that as Attorney General of Israel from 1975 to 1978. In 1978, Barak was appointed by Prime Minister Menachem Begin as the legal advisor to the Israeli delegation negotiating the Camp David Accords. In September 1978, Barak began his service as a Justice of the Supreme Court of Israel – the youngest of all of the judges. In August 1995, Barak was appointed the President of the Supreme Court.

After 1992, much of his judicial work was focused on advancing and shaping, in Barak’s words, Israel’s “constitutional revolution,” which he determined was brought about by the adoption of the Basic Laws in the Israeli Knesset dealing with human rights. According to Barak’s approach, which was adopted by the Supreme Court of Israel, the constitutional revolution tied to the Basic Laws brought values such as the right to equality, freedom of employment and freedom of speech to a position of what he describes as “normative supremacy,” and thereby granted the courts (not just the Supreme Court) the ability to strike down legislation that is inconsistent with the rights embodied in the Basic Laws. Consequently, Barak held that the State of Israel has been transformed from a parliamentary democracy to a constitutional parliamentary democracy, in that its Basic Laws were to be interpreted as its constitution. This is very significant, because in earlier cases, the Supreme Court of Israel expressly stated that it did not intend to exercise the power of judicial review in order to strike down acts of the Knesset other than on procedural grounds.

The history of the Basic Laws began in 1958 when the Knesset first enacted a series of what are now 14 specific statutes referred to as the Basic Laws. In essence these laws served as a stop-gap constitution enacted by statute that govern essential affairs of the country, including state lands, the role of the IDF, the role of the President, the judiciary, and the status of Jerusalem as the capital of Israel with religious rights for all faiths. In 1992 the Knesset passed the first two Basic Laws that related to human rights. These are “Basic Law: Human Dignity and Liberty”and “Basic Law: Freedom of Occupation“. Both Basic Laws contain clauses prohibiting the violation of the rights they enumerate, “except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.” These are referred to as “limitations clauses” because they limit the power of the Knesset to amend them unless the amendment meets the standards enumerated in the laws themselves.

In the landmark 1995 case Bank Mizrahi v. Migdal Cooperative Village (1995) CA 6821/93, the court under Barak declared that due to the limitations clauses included in the 1992 Basic Laws, the Basic Laws now formed a written constitution that the courts had the power to uphold via judicial review. The more specific holding of Bank Mizrahi was that Knesset legislation that violates the limitations clauses of Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Freedom are void no matter what majority passed the law, rejecting its earlier position that only constitutionally entrenched Basic Laws empowered the court to exercise judicial review. 

The Court’s main reasoning was that the Knesset holds two distinct roles within the Israeli state depending on the type of legislation it is enacting. In addition to its position as the legislative branch, which it occupies when dealing with ordinary legislation, the Knesset acts as a constituent assembly empowered to write a formal constitution for Israel when passing Basic Laws, deriving this authority from the First Knesset’s Harari Decision to pass on the task of writing the constitution to the Second Knesset.

This marked a significant departure from the British common law doctrine of parliamentary sovereignty that Israel inherited and practiced prior to Barak’s constitutional revolution, because it permitted a Knesset to bind its successors. Under the doctrine of parliamentary sovereignty, among other things, no legislative body can pass laws that a future version of that legislative body cannot change.This doctrine is echoed in American law, referred to as “legislative entrenchment,” in that one legislature may not bind the legislative authority of its successors. In contrast, Bank Mizrahi held that the Knesset’s action of inserting the limitations clauses in the 1992 Basic Laws effectively limited the authority of all future Knesset actions that touched on the Basic Laws governing human rights. 

On July 24, 2023, the Knesset attempted to abolish both the reasonableness doctrine and the evolving form of judicial review of Knesset legislation by enacting a statute, referred to as Basic Law: The Judiciary (Amendment No. 3),that stated, in part, “those holding judicial power by law, including the Supreme Court sitting as the High Court of Justice, shall not hear [a case] nor issue an order against the Government, the Prime Minister or a Government minister, on the reasonableness of their decision; in this section, ‘decision’ means any decision, including on appointments, or a decision to refrain from exercising authority.” The bill also addressed judicial review stating “the non-justiciability of basic laws, stipulating that a [court] holding adjudication power by law, including the Supreme Court, will not address, directly or indirectly, a question regarding the validity of a basic law, and no ruling on such a matter will be valid.”

Subsequently, in the case of Movement for Quality Government in Israel v. Knesset(2024) HCJ 5658/23, the bill was struck down by the Supreme Court, in its role as the High Court of Justice by a vote of 8–7. The justices also ruled 12–3 that the court has the power to overturn Basic Laws.

Not surprisingly, the Netanyahu government described the need to respond to court’s ruling, but, to a large degree, the issue was put on hold after the October 7, 2023 attack by Hamas. While there have been government actions challenging Supreme Court orders, the primary issues of the reasonableness doctrine and the Israeli form of judicial review have not been taken up. Thus, the status of these doctrines remains as they were before the current government’s efforts to repeal them. 

Conclusion

In my view, the confusion that has resulted from the issues arising from the judicial review doctrine adopted by Justice Barak would seem to deserve serious consideration. While one can construe the adoption of certain Basic Laws in conjunction with earlier Knesset proposals to adopt a future constitution as having created a form of constitutional government, the Knesset has never formally taken an action that would constitute the adoption of a constitution or the proclamation that the Basic Laws enacted since 1948 are themselves equivalent to a written constitution. Given the absence of a formal set of constitutional rights that came to exist leading up to Barak’s doctrinal proclamation, it is reasonable to understand why he felt that the Israeli judiciary needed to step in and to some degree fill that gap. However, the lack of a national consensus inherent in a judicial construction that is only arguably hinted at from the language of enacted legislation makes sustaining the doctrine very difficult in a democratic society. Also, as stated above, the doctrine of parliamentary sovereignty that enables a future legislative body to overrule an act taken by an earlier legislative body enjoys universal acceptance, except, perhaps in Israel. Thus, the Knesset, a democratically elected legislature,in some instances may not modify or correct the actions taken by its predecessorswhen those actions relate to the Basic Laws. In my view, the manner in which Justice Barak concluded that Israel has achieved a “constitutional revolution”demonstrates the need for some form of constitutional convention in order to at least attempt to achieve a national consensus and ultimately adopt a guiding document that would clearly and rationally determine the rights that should be enshrined in a written constitution for the country.

With respect to the reasonableness doctrine, after considering the origin of the doctrine and its application in common law countries, my views are different. Recall that the reasonableness doctrine applies to an administrative action. A Westminster parliamentary system, such as that developed in Great Britain and replicated in countries with historic ties to Britain, including Israel, lacks a clear separation of powers. The various ministries that exercise administrative authority are headed by members of the legislative branch, as chosen or agreed to by the prime minister. Thus, the legislative branch does not and cannot fully function as a check on the administrative branch because, in a very real sense, they are the same. While the parties in opposition to the government may protest governmental actions, ultimate authority resides in the hands of the party in power. 

Unlike the form of democracy practiced in the United States, the legislative branch in a Westminster form of government, cannot exercise legislative oversight by cutting off funding when it strongly disagrees with the direction that the administration is taking on a given issue. When viewed with an eye toward the almost unlimited power of the legislative branch, the outgrowth of a judicial response in the form of the reasonableness doctrine becomes understandable. Moreover, the adoption of the doctrine by Great Britain and practically every common law country formerly under British influence suggests that the courts in those countries have come to recognize the need in a functioning democracy to provide a remedy when administrative actions, taken practically at any level, are fundamentally unfair. I suggest that this recognition is akin to the arbitrary and capricious standard applicable in administrative law in this country to determine whether an administrative agency’s decision was made on a reasonable basis and within the scope of its authority. It is my view that the Israeli government should be very cautious before it takes actions that cut off the right of its citizens to challenge in court egregious administrative conduct when that right is enjoyed by the residents of practically every other country that traces its legal system to the common law. 

In conclusion, the issues that gave rise to civil demonstrations and significant political protest in Israel in 2023 and continue to this day are significant ones. While the test and standard are surely imperfect, the reasonableness doctrine enables Israeli citizens to challenge governmental decisions that are asserted to be “illogical, unreasonable and intolerable,” a right enjoyed throughout the common law free world. The question of whether the Supreme Court of Israel should have the right of judicial review over enactments of the Knesset raises even more profound issues that go to the governmental power of these branches of the Israeli government and should be addressed as soon as possible to avoid a constitutional crisis that pits one against the other threatening the fabric of Israeli democratic government.

The views expressed are the author’s own and do not necessarily reflect those of University of the Pacific McGeorge School of Law.