Israeli due process – the Obligation to Explain official decisions
What is the obligation to explain official decisions, aka “Hovat Ha’Hanmaka“?
The obligation to explain official decisions applies to any decision by the administrative authority in Israel which denies a request. According to Israeli legislation, any decision taken by the governmental bureaucracy must be anchored in Israeli law, reasonable, proportionate and reasonable. Each of these can serve as a reason for challenging the decision of an administrative authority, but the obligation of explanation is the one that Israeli authorities tend to forget most often. “Explanation” in this case refers to a clear and logical account of why the decision was made. The legislator’s intention is for the bureaucracy to establish an example of self-criticism in explaining its actions. Conversely, parties affected by the decision can understand its logic and be able criticize it. This article by Joshua Pex an Israeli lawyer at Cohen, Decker, Pex, Brosh law firm inJerusalem and Petah Tikva will explain the obligation of explanation and its use in appealing the decisions of the Israeli administrative authority.
The Israeli “explanations” law of 1959
The obligation to explain official decisions of the Israeli administration was enacted in the Administrative Procedure (Explanations) Law, 1959. The language of the law says:
“A public servant who was requested to act, as stated in section 2 (a) and refused the request, shall notify the applicant in writing of the reasons for his refusal”. These explanations should be (as Israeli legal precedent has stated) clear, inclusive, and specific.
When does the Israeli administrative authority “forget”the obligation to explain official decisions?
The administration violates the law whenever it makes a decision denying the appeal of an individual or group without producing a clear explanation as to why the decision was made. Rarely is there a complete lack of explanation. Usually, the decision is accompanied by an explanation along the lines of “the applicant does not meet the criteria for the decision” or “after considerations of the relevant factors the request is denied”. What are the criteria and how they were not met? Which factors are relevant? The administration must explain these points, and an appeal of the decision may be based on said lack of explanation.
The Israeli Ministry of Interior often neglects to explain its decisions:
Cohen, Decker, Pex & Brosh specializes in immigration to Israel. As a result, we often correspond with the Ministry of Interior (MOI) and immigration authorities on behalf of our clients. Quite often, when dealing with family unification cases or aliyah to Israel, the MoI denies requests without any clear explanation of its reasoning. Israeli citizens in a marriage or common law union with a non-Jewish partner will often find themselves facing a denial citing “the sincerity of the relationship was not proven”. Such a sentence, without further explanations or supporting facts, does not count as a proper explanation of an official decision. In these instances, there is definitely reasonable grounds to appeal the decision.
When is the administrative authority exempt from the duty of explanation?
The obligation to explain does not apply to decisions made due to considerations of state security, when the explanation may harm another person, and when disclosure of the decision’s considerations involves confidential information. The authorities recognize and occasionally abuse the exemption. For example, border control authorities may stop tourists and refuse them permission to enter Israel due to suspicion that they intend to settle in Israeli without the required Israeli visa. But these are considerations that the law requires the authority to explain in greater detail than the “professional intuition” on which many border control decision are based. Therefore, a second reason for the refusal is listed as “Reasons of State Security”. In this way, the border control authorities attempt not to explain the decision any further.
Does failure to explain invalidate the decision made?
Finally, it is important to note that even if the administrative authority does not justify its decisions or explains them in a way that is not specific, clear, reasonable, or stands the test of logic, this does not mean that this decision will be rejected by the court or by any external appeal. Lack of explanation usually only allows to call upon the representative of the administration to explain the decision. When explaining the decision in a legal forum, such as the Israeli immigration tribunal, the representative of the Ministry of Interior (in Hebrew Misrad Hapnim) must prove that the decision meets the test of the relevant laws, regulations and restrictions, and that it was made with due consideration. Such an explanation may give due cause for the administration to reconsider its decision. Alternately, a lack of justification in the explanation may in fact cause an external legal authority to overrule the decision.
If you wish to appeal a decision of the administrative authority, or you need legal assistance in Israel, contact Cohen, Decker, Pex and Brosh, lawyers in Petah Tikva and Jerusalem who are greatly experienced in appeals against Israeli authorities..