Gharis v. Haifa District Commissioner
The Petitioner sent the Respondent (the Haifa District Commissioner) notice of the establishment of an association named “The El-Ard Movement”, as required under secs. 2 and 6 of the Ottoman Associations Law, 1909. In his reply, the Respondent noted that it was clear from the articles of association that the association was established with the intent to harm the State of Israel, and is therefore prohibited under sec. 3 of the aforesaid law. The Petitioner filed a petition with the High Court of Justice for an order nisi against the Respondent.
In denying the petition, the Supreme Court held:
A. Under sec. 3 of the Ottoman Association Law, 1909, an association is prohibited if its purpose, or one of its purposes, is illegal or if it infringes the existing public order or the integrity of the state.
B. (1) The rule is that the decision as to the legality or illegality of an association’s purposes must be made, first and foremost, on the basis of the wording of the articles of association themselves. It is that wording that obligates the members of the association, and not the explanations and commentaries attributed to it by the founders.
(2) Where the illegal purpose is concealed or masked, hiding behind a smokescreen of flowery language, the government may certainly adduce material that may serve to reveal the true purpose. But when the illegality is manifest from the articles of association themselves, or where the articles are open to interpretation and raise serious doubt in the reader’s mind, the founders of the association should not be permitted to launder them by means of caveats and commentaries.
C. It is a fundamental rule that only weighty considerations can serve to prohibit an association. Freedom of association is one of the fundamental principles of a democratic regime and one of its basic civil rights. But no free regime can lend its hand to the granting of recognition to a movement that seeks to undermine that very regime. It is an elementary right of every state to defend its liberty and its very existence against foreign enemies and their domestic adherents.
|Witkon, Alfred||Primary Author||majority opinion|
|Berinson, Zvi||Non-writer||majority opinion|