The Reasonableness Standard serves courts as a yardstick for the review of acts by the Government and public administrative bodies. Thus far, almost no comprehensive examinations have been conducted of the scope of its actual impact, particularly with respect to the topic of government appointments, which is at the heart of the dispute between the Standard’s supporters and opponents. This study examined all judgments from the last two decades (2003–2022) in which it was claimed that an appointment advanced by the government was unreasonable to an extreme degree and should be disqualified. The study presents qualitative and quantitative data on the scope of Supreme Court intervention and situations in which, according to caselaw, a government appointment constitutes a deviation from the bounds of reasonableness.
Dr. Bell Yosef and Dr. Elad Gil · July 2, 2023
The Reasonableness Standard dominates many spheres of decision-making by the Government and the other arms of the executive branch. A central area disputed by supporters and opponents of the Reasonableness Standard is its application regarding executive branch appointments that fall under the authority of political figures. Critics of the Reasonableness Standard have concerns that the use of a standard with “open seams” as a central cause for judicial review of appointment processes transfers the primary weight of decisions regarding the candidate’s qualities and suitability for the position from the Government to the court.
In this paper, we sought to examine what the data can teach us about this question. The examination focuses on three types of appointments: appointment of ministers/deputy ministers (including decisions to remove from office), an authority granted to the Prime Minister under Basic Law: The Government; appointments approved by the Government as detailed in the Second Addendum to the Civil Service Law (Appointments), 5719–1959 or under another legislative act or a Government decision; and appointments subject to approval by a minister or another senior executive branch entity (Attorney General, public corporations etc., hereinafter: “Ministerial Appointment”), according to various legislative acts. For example, according to the provisions of the Government Companies Law, 5735–1975, directors of government companies are appointed by the Minister of Finance and the minister responsible for government companies.
Main Findings
Between the years 2003–2022, judgments were published in 64 petitions against executive branch appointments, in which the petitioners raised arguments regarding the appointment’s unreasonableness. [1]
At an overall glance, 12 petitions were approved, of which seven were based on unreasonableness and five on other grounds. In total, arguments regarding the appointment’s unreasonableness were accepted in 11.1% of petitions in which a judgment was granted.
Two out of 23 petitions concerning appointments under the Government’s authority were approved based on the Reasonableness Standard.
Two out of 13 petitions concerning ministers’ terms in office were approved based on the Reasonableness Standard. The first concerns Rabbi Yaakov Litzman’s term as Deputy Minister of Health, and the second concerns Rabbi Aryeh Deri’s terms in the Interior and Health ministries. In both cases, reasonableness was not the only reason constituting a legal basis for disqualifying the appointment.
The Appointments Found Flawed Based on the Reasonableness Standard
1. Appointment by a minister (2006) – Appointment of Assistant Commissioner Bentzi Sau to the position of Secretary of the Minister of Internal Security’s Operational Headquarters (2006), following the Or Commission’s conclusions that he should not be promoted for four years due to his responsibility for failures discovered in the police’s activities in the events of October 2000. [2]
2. Appointment by a minister (2007) – Extension of Yehoshua Sade’s term as Director of the Ministry of Transport’s Licensing Division, following substantial offences to which he confessed and was convicted, and which were related to his position. [3]
3. Appointment by the Government (2009) - Appointment of Sar-Shalom Gerbi as Director General of the Ministry of Science for a six-month trial period, following a decision by the Appointments Committee headed by the Civil Service Commissioner that he was not fit to serve in the position. [4]
4. Appointment by the Government (2012) – A decision by the Minister of Finance not to appoint as Director of the Israel Tax Authority the candidate recommended by the search committee, and to convene a new committee instead, as well as setting out new eligibility rules for the position. Due to a combination of circumstances defined by the Court as exceptional, it was held that the decision not to accept the candidacy recommended by the search committee should be nullified due to a deviation from the bounds of reasonableness. [5]
5. Appointment by the Prime Minister (2015) – Cancellation of Yaakov Litzman’s term as Deputy Minister of Health following a decision that a deputy minister who holds office in a ministry where the Prime Minister serves as the minister, and in practice the ministry’s powers and authorities are under the deputy’s responsibility, is extremely unreasonable. The decision meant elimination of the institution of deputy minister with the status of minister. [6]
6. Appointment by a minister (2019) – Nullification of the Minister of Science’s decision not to appoint Prof. Yael Amitai as a member of the Board of Governors of the German-Israeli Foundation because of her signature, about 16 years before the appointment, of a petition in support of students and lecturers who refused to serve in the military in the territories. A decision was made to send the decision back to the minister for reconsideration. [7]
7. Appointment by the Prime Minister (2023) – It was concluded that Prime Minister Netanyahu’s decision not to remove Rabbi Aryeh Deri from office as the Interior and Health ministers was unreasonable, in light of his list of indictments and the implications of leaving Deri in his position as minister for violating public trust in the Government. [8]
Methodology
Due to the scope of petitions filed in the High Court of Justice, the large number of petitions in which the petitioners claimed unreasonableness, and since many petitions were approved based on several causes of action, the examination focused on government appointments. Within this framework, we examined all appointments of ministers/deputy ministers, appointments authorized by the Government, and appointments authorized by a minister during the last 20 years (from January 1, 2003 to December 31, 2022) which reached the stage of a published judgment. The examination’s scope did not include judgments that addressed appointments in the areas of local authorities, appointed committees (for appointing interim mayors) and the like, due to their unique character, which raises tension in the context of local, not national, politics. The cases were located using the “Nevo” legal database, which we regularly use for empirical studies. To the best of our knowledge, the Nevo database is the broadest and most comprehensive of all the legal databases, and it allows searches based on keywords. An annual/biannual search was conducted of proceedings before the High Court of Justice according to the following filters: appearance of the word “appointment” [regular morphology]; in addition, appearance of the words “reasonable” or “reasonableness” [precise]. A total of 64 petitions were identified that met the search terms. The results were examined individually (with no AI-based filtering) in order to filter out judgments in which arguments were raised regarding an appointment in which the Government or one of its ministers were involved. Each judgment was read, and relevant fields were marked in the table: proceeding details, date, substance of petition, petition result (binary – approved or rejected), and cause of action (in cases where the petition was approved). The findings are detailed in a table appearing in the complete, original Hebrew version of this article. Moreover, six additional petitions were found that address the authorities for appointments to the government and senior positions, even though they did not address a specific appointment, as detailed in the aforementioned table.
Note – For source references for this article, see the original Hebrew text.
Dr. Elad Gil
He is a senior fellow and head of research at the Tachlith Institute for Israeli Policy.
Dr. Bell Yosef
Head of the Tachlith Institute’s program “Democracy’s Rules of the Games”, researcher and lecturer in the field of public law.
Comments