Explainer: Israel’s Harmful New Legislation

The Israeli Knesset has passed a law that would significantly curtail the ability of the courts to review government decisions through a tool known as the Reasonableness Doctrine. The legislation is part of a broader effort to remake Israel’s judicial system that has attracted widespread condemnation as anti-democratic, triggering 29 consecutive weeks of protests across the country. In February, HIAS joined with Israeli and U.S. civil society organizations in condemning these efforts. 

“Justice is one of HIAS’ core values,” said Noah Gottschalk, senior director, international Jewish community relations at HIAS. “That is why we cannot stand silent as the Israeli government undertakes sweeping changes to the country’s judicial system that stand in direct opposition to this value, changes that will severely undermine the system of checks and balances and democracy, and which threaten the human rights of all who are subject to the decisions of the Israeli government. We urge the Israeli government to reverse these changes and instead preserve the independence of the judiciary.”

To examine why the legislation would be so damaging to the rule of law and democracy in Israel, and harmful to marginalized communities in particular, here is a brief explainer: 

What is the Reasonableness Doctrine?

In the Israeli legal system, the Reasonableness Doctrine empowers the judicial system to function as a check on legislative power by curtailing decisions that are outside the range of reasonableness. In effect, the doctrine states that any administrative body exercising official power has a range of reasonable decisions it can take in any given matter, and while such administrative bodies may implement its policy and values within that range of reasonableness, it may not act outside of that range.  

If a person petitions against an administrative decision, and the court finds that such a decision is extremely unreasonable, the court can then act to annul it. Rulings have emphasized time and again that the court reviewing the reasonableness of an administrative decisions is not supposed to replace the judgment of the authorized decision maker — but merely to examine whether any decision maker acting reasonably could have made such a decision. Historically, Israeli courts have seldom exercised their authority under this doctrine but it has served as an essential check against more extreme decisions.

The Knesset’s vote on Monday essentially strips the judiciary of this power and allows the current government, perhaps the most right-wing in Israel’s history, to act virtually unilaterally without judicial oversight. 

Why is repealing the Reasonableness Doctrine so damaging? 

The law eliminates a basic element of the protection that the law is supposed to provide all people subject to Israeli government rule, citizens and noncitizens alike: to ensure that the government serves the public good, and that its decisions are not arbitrary, capricious, discriminatory, or corrupt. For instance, policymakers can appoint unqualified loyalists and relatives to key positions without the courts’ ability to review these appointments. Given that Israel lacks a constitution protecting basic rights and equality, the system of checks and balances embodied by the Reasonableness Doctrine was vital to safeguard civil and human rights in the country, particularly for marginalized groups including women, Palestinian citizens of Israel, members of the LGBTQ community, and asylum seekers. 

What are the implications for asylum seekers? 

HIAS Israel works with a diverse population of asylum seekers, including many who fled conflict in Sudan’s Darfur region, as well as those who endured persecution in Eritrea and those displaced by the recent war in Ukraine. Historically, the judicial system has protected the rights of minorities and others vulnerable to political repression from legislative acts. A simple majority in Israel’s Knesset has undone the protections that had previously been granted to these populations. 

The Ministry of Interior wields significant power over the lives of asylum seekers in Israel, including granting refugee status and access to rights. Removing the ability of the courts to review decisions by the minister negatively impacts the refugees and asylum seekers that HIAS works with. Decisions pertaining to the dismissal of gatekeepers, office holders who monitor actions of the executive branch, would also put the protection of human rights in critical danger. 

This legislation gives the government and its ministers the power to make decisions that discriminate against specific populations or violate human rights to promote their political agendas without being subject to judicial review. Individuals harmed by these decisions will now not be able to turn to the courts to seek protection and relief under the grounds that these decisions were unreasonable. Accordingly, given that the current government policy towards asylum seekers is to keep them in limbo and avoid making decisions for unreasonable periods of time — often more than 10 years — the elimination of reasonableness would expose refugees to even further abuse of their rights. 

“This is a testing, tumultuous time in Israel,” said Sivan Carmel, director of HIAS Israel. “Taking away the court’s ability to apply the Reasonableness Doctrine means taking away a core safeguard of democracy, one that can serve as the last line of defense against abuse of power and discriminatory decisions. We hope that even on this dark day, the government will heed the cry of the people – those protesting in the streets and those of generations past, who came to Israel from regimes that lost all reason and gave way to unbridled power that trampled human rights and human dignity. We call upon the government to reverse this legislation and to reach a broad consensus that reflects the values that Israel was founded upon.”