Aurel Braun and I wrote an opinion piece, published in the Globe and Mail on July 23, 2023, about the need for outsider restraint in the face of the turmoil in Israel about proposed and enacted judicial reform, about the value of leaving the working out of the debate to Israelis.  This piece carries forward that point of view in more detail by addressing one particular item in the Israeli debate, the contest over the recent legislative removal of the court standard of review of reasonableness.

In general, those with nothing to say should say nothing; those advocating silence should be silent.  Nonetheless, the Globe piece generated controversy on the value of outsider silence about proposed and enacted judicial reform in Israel.  This piece elaborates the position previously taken to give an expanded justification of that advocacy of silence. 

There are a couple of contribution outsiders can make to the Israeli judicial reform debates  – noting the difference between Israel and other countries in the matters over which there is contention, and also point to the international dimensions of the disputes.  Within the ambit of these matters is something for outsiders to say. Yet, those exceptions do not justify complete immersion in the Israeli debates.

The legislation as enacted on July 23, 2023 is brief and provides

          "Notwithstanding what is stated in this Basic Law, those who have judicial authority according to law, including the Supreme Court in its session as a high court of justice, shall not discuss the reasonableness of the decision of the government, the prime minister or another minister, and shall not issue an order on the matter."

Israeli Government proposals of January 11, 2023, which preceded and justified the new law annulling the standard of review of reasonableness, espoused as one purpose:

          "to annul the unreasonableness grounds in Israeli administrative law as it has been shaped in the past decades, and to return administrative judicial review to grounds based on clear standards, and as accepted and understood around the world."  

This justification raises this question: What is administrative judicial review as accepted and understood around the world?  The grounds and standards for administrative judicial review as accepted and understood in other countries besides Israel are not completely identical. There are nonetheless similarities with each other and marked differences between these other countries and the grounds and standards for administrative judicial review which had developed in Israel prior to the recent annulment law.      

Canada is as good an example as any to illustrate the differences. Some of the differences are these:

1) In Israel, the courts have allowed the record - the evidence, the issues, and the reasons - before the agency whose decision is under review to be supplemented at the judicial review stage by new evidence, new issues, and new reasons. In Canada, judicial review is, with limited exceptions, based on the record before the government agency whose decision is under review. The exceptions are evidence not already on the record to support claims of a breach of procedural fairness or a reasonable apprehension of bias.

2) In Israel, almost anyone, before the new law was enacted, could bring to court petitions against almost any administrative or executive action. In Canada, determining whether an applicant can have public interest standing requires striking a balance between ensuring access to the courts and preserving judicial resources. In striking that balance, the courts have to consider whether the proposed case is a reasonable and effective way to bring the issue before the courts. Standing is typically denied where the courts need and can potentially get, in another case, the benefit of the contending points of view of those most directly affected by the determination of the issues.

3) In Israel, it is possible to seek judicial review of an administrative decision before all administrative remedies have been exhausted. In Canada, the doctrine of exhaustion of remedies requires that an applicant pursue all adequate administrative remedies available to him or her prior to applying for judicial review.

4) In Israel, a decision is unreasonable if competing considerations are not balanced, or balanced improperly, or if any of the considerations is given an improper weight which affects the balance.  In Canada, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the 'range' of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the correct solution to the problem.

5) In Israel, judicial review often leads to a decision ordering the government to change its decision.  In Canada, judicial review, even if it succeeds, is limited, with the rarest of exceptions, to sending back the matter under dispute for reconsideration by the agency whose decision was under review. For instance, in Canada a Court would decline to remit a matter for reconsideration where an outcome is inevitable and that remitting the case for reconsideration would serve no useful purpose.

The Knesset legislation of July 2023 does not change the standards for judicial review on the ground of reasonableness. It rather just annuls the standard of review of reasonableness for some decisions - made by the Government, Ministers and the Prime Minister, and leaves that standard of review intact in its prior form for other decisions - made by the Knesset, or administrative agencies.  

The Government in 2014 had proposed a bill codifying the law of reasonableness for judicial review.  That bill had met with substantial opposition. Two of the reasons for the opposition were that the codification would lead to ossification of the law and that the law would not be sensitive to the wide variety of circumstances in which judicial review occurs.

One might ask why the Government did not introduce legislation into the Knesset to replace the outlier Israeli law of reasonableness with the law of reasonableness "as accepted and understood around the world", its stated purpose for the legislation.  The answer may well be the objections that arose to the 2014 proposed law, objections which would apply equally to a law codifying any standard of review.

The recent law annulling the standard of review of reasonableness, perhaps needless to say, did not annul the Canadian standard of review of reasonableness; the law annulled the Israeli standard of review reasonableness. With that annulment, there is still scope of for Israeli judicial review, just not the same scope as existed before. If the Israeli courts, after the annulment, proceeded to exercise judicial review under the rubric of reasonableness in the same way that it is exercised in Canada, that exercise would presumably accord with the Government intent in proposing the legislation which the Knesset enacted.

Indeed, something like that may happen.  The Israeli Basic Law on the Judiciary provides that the Supreme Court "shall hear matters in which it deems it necessary to grant relief for the sake of justice".  A 1993 Court judgment ruled that this provision gives the Court "broad jurisdiction to review the legality, correctness, and reasonableness of actions by public authorities." 

Because of the broad scope and application of the Israeli developed standard of review of reasonableness, the standard of review of correctness had withered, subsumed under the standard of review of reasonableness.  Anything incorrect, under the Israeli law of reasonableness, was almost always also unreasonable.  Now that the reasonableness standard is gone, at least for decisions of the government, ministers and the prime minister, the correctness standard of review remains and could generate much the same public concerns as the now annulled standard of reasonableness did.   

The correctness standard of review means that the courts must determine whether a government, ministerial or prime ministerial decision is right or wrong. Removing only the reasonableness standard of review, as the recent Knesset law does for government, ministerial and prime ministerial decisions, means leaving the courts with the standards of review of legality and correctness.  When the courts have a standard of review of correctness, but not reasonableness, they must engage the issue whether the decision is right or wrong.  Once the reasonableness standard of review is gone, if nothing is put in its place, the courts do not have the option of letting the government off the hook, of deferring to government expertise, of not interfering on the basis that the decision, though maybe wrong, is reasonable. 

The recently enacted law accordingly, without some form of reasonableness standard of review, maintains pre-existing court powers and presages continuing court activism across the board.  With the new law, unless the courts adopt some more limited form of reasonableness to replace the repealed law of reasonableness, there is a likelihood that Israeli courts would set aside the same government, ministerial and prime ministerial decisions as they did before, this time because the decisions are incorrect. Without some form of reasonableness standard of review, decisions could not be allowed to stand as reasonable, even if arguably incorrect.

In Canada, the correctness standard of review applies only when it is legislated or when a set category of questions arise. Those categories are constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies. 

The Basic Law of Israel is not an entrenched constitution; it is Knesset legislation. If the standard of review of correctness were limited in Israel the way it is limited in Canada, that standard of review would not apply to the Basic Law, unless one of the other two categories of questions arose.  Yet, that is not, as noted, the current state of Israeli jurisprudence. Under that jurisprudence, the standard of review of review of correctness applies to all "matters".

All this, of course, is a matter of legal technicalities. What is written above is done for the purpose of pointing out the technicalities of the issues, rather than to suggest anything Israelis should or should not do. 

The technicalities of this debate about standards of review do raise questions which are related to the issue of foreign involvement.  Why are Israelis themselves consumed by this legal technical debate about standards of review?  One can understand that lawyers, at least Israeli lawyers, might care.  But why would anyone else care, even inside Israel?

The answer is, as the opinion piece Aurel Braun and I wrote indicated, that the debate about standards of review is a surrogate for other issues.  The real divide in Israel is a divide over those issues, issues on which the Court has decided by using the now repealed standard of review of reasonable or could have decided using the old standard of review of reasonableness, if that standard had remained in place.

To run through all the many surrogate issues at stake in the debate would take far too long.  So, here is just one example, military service of ultra-orthodox male youth. 

Petitioners challenged a practice of the Minister of Defence to grant deferrals of and exemptions from required military service to ultra-Orthodox Jewish Yeshiva male students who engage in full-time religious study. The Supreme Court, in December 1998, declared the Defence Minister's practice unreasonable and, therefore, invalid. The declaration of invalidity meant that the exemptions no longer existed.  The Court delayed the declaration of invalidity in order to allow the Knesset time to address the matter.

In response, the Knesset passed a law in 2002 providing a series of military service options for ultra-Orthodox Jewish male youths, one of which was to avoid military service by continuing on in religious studies. The Supreme Court in 2012 declared that law invalid, granting an exemption from its judgment until a new law has passed.

The Knesset then passed a second law in 2014 amended in 2015 to provide, without criminal penalties for non-compliance, a requirement that there be drafted each year a rising percentage of ultra-Orthodox male youths.  The Supreme Court in 2017 found that law also to be invalid, again granting an exemption from its judgment until a new law has passed.  That exemption expired at the end of July this year.

The Government is now providing administrative exemptions to ultra-Orthodox youth from military service until a new law is enacted, promised by the end of March 2024.  These administrative exemptions are the very sort of exemptions found by the Supreme Court in 1998 to be unreasonable and invalid. 

There is arguably a difference between the current and past exemptions on the basis that the current exemptions are indicated to be temporary. However, whether the Court would find that distinction to be tenable is uncertain.

The Knesset enacted the legislation annulling of the Israeli specific standard of review of reasonableness eight days before the Court ordered continuation of the exemption of ultra-orthodox male youths was set to expire.  The timing and scope of the legislation - as noted, specific to the Government, Ministers and the Prime Minister - may be related to that expiry date.  One reason for the current legislation may well have been the determination of the present Government to extend, through a Ministerial order, the exemption of ultra-orthodox male youths from military service beyond the date of application of the Court ordered exemption.    

Should there be a religious exemption from compulsory military service, even in non-combat, community service form?  There are arguments in Israel both for and against. There is no universal standard.  Canada does not have compulsory military service.  For Canada, the issue does not arise. This issue is really one Israelis should decide.

One can say the same about many of the other surrogate issues previously decided or which could have been decided if the old reasonableness standard remained in place.  They are, in many cases, Israeli issues, embedded in an Israeli context, for Israelis to resolve.

Why did the Israeli judiciary develop a reasonableness standard of review unlike any other?  The reason may be the absence of a constitutionally entrenched bill of rights. The Basic Law of Israel, as a statute of the Knesset like any other, does not prevail over other laws. 

The standard of review of reasonableness ending up doing the work that the courts would have done if they had constitutional rights to apply.  Laws, government decisions and decisions of administrative tribunals ended up being assessed by the courts, not on the basis that they may have conflicted with the Basic Law as such, but rather on the basis that the conflict was arguably unreasonable.

The standard of review of reasonableness ending up doing the work that the courts would have done if they had constitutional rights to apply.  Viewed from this perspective, the standard of review of reasonableness outside of Israel does too little and Israeli specific standard of review of reasonableness before the annulment legislation does too much.

The standard of review of reasonableness outside of Israel, in an Israeli context, does too little because it leaves substantive international human rights violations and other matters of substantial international concern untouched, provided only the process of reaching the decisions was proper. The Israel specific standard of review before the annulment legislation did too much because it encompassed all government decisions, not just the particular decisions where substantive international human rights violations or other matters of substantial international concern were at issue. 

The current law annulling the Israel specific standard of review of reasonableness has been challenged in Court.  For the law annulling the Israeli specific standard of review to pass muster, the law must itself pass the Israeli specific standard of review of reasonableness.  As noted earlier, the recent law repeals the standard of review of reasonableness for Government decisions, but not for legislation. The Court, in its assessment, has three options – finding the law wholly reasonable, find the law wholly unreasonable, or splitting the law - finding the law reasonable in part and unreasonable in another part.     

If the legislation were to be split, the default position could be the current law – that is to say the acceptance of the annulment of the Israeli specific standard of review of reasonableness and its replacement by the standard of review of reasonableness as accepted and understood around the world outside of Israel.  That default position could be determined not to apply in limited cases.  In those cases, the annulment itself would be annulled as unreasonable. 

A  tenable limit, where the more hands on Israel specific standard of review of reasonableness would apply, would be cases where substantive international human rights violations or other matters of substantial international concern are at issue.  An example of an issue which might justify application of the old Israel specific standard of review as an issue of substantial international concern might be changes in the law of return, which affects the diaspora as much as Israel.  

Procedurally, the split could be engineered through a leave or threshold requirement. The threshold requirement to apply the Israel specific standard of review could be that the  applicant raises a significant issue of public importance with a substantial international dimension.

This threshold test is, of course, similar to the standard of review of reasonableness which would apply in the underlying application if the threshold test were met.  Yet, it is not unusual in judicial review outside of Israel for such a situation to arise.

In Canada, for instance, a person who seeks a stay of enforcement of a removal order pending final determination of an application for leave and judicial review challenging a decision by Government agents not to defer removal pending that Court application must meet a tripartite test of serious issue, irreparable harm and balance of convenience. Succeeding in the stay application means, in effect, succeeding in the underlying application for leave and judicial review. Accordingly, to meet the test of serious issue, the Canadian courts have held that the applicant must show a likelihood of success in the underlying application.                

Should the parties to the litigation agree to a split in the type of standard of review of reasonableness which apply to the case, depending on the matter at issue?  If not, should the Courts impose such a split as reasonable, according to the Israeli specific standard of review of reasonableness?  Those are questions for Israelis to decide.

The repeal of the Israel specific standard of review of reasonableness was only one of the proposed judicial reforms of the Government.  Each deserves its own separate discussion.  Yet, this opinion piece has gone on long enough.  The general point, nonetheless, remains the same.

On each issue, there are compelling arguments on either side of the debate.  One can see the division of views by the massive disruption that the proposals have generated. For all of these issues, outsiders may, as here, point out the differences between their jurisdictions and Israel. They may also, as here, point out the international dimensions of the dispute. Otherwise, outsiders should be silent.

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David Matas is an international human rights lawyer based in Winnipeg lawyer and senior counsel to B'nai Brith Canada.