EDA 1806/19

                                                                                                                                  EA 1866/19

                                                                                                                                  EA 1867/19

                                                                                                                                  EA 1876/19

 

In re:                                      Central Elections Committee for the 21^st Knesset

 

Plaintiffs in EDA 1806/19:               1.         MK Avigdor Lieberman

                                                            2.         MK Oded Forer

                                                            3.         Yisrael Beiteinu Faction

Appellants in EA 1866/19:               1.         Issawi Frej

                                                            2.         Ofer Kornfeld

                                                            3.         Atara Litvak

                                                            4.         Debbie Ben Ami

                                                            5.         Sonia Cohen

                                                            6.         Richard Peres

                                                            7.         Eran Yarak

                                                            8.         Gil Segal

                                                            9.         Shifrit Cohen Hayou Shavit

                                                            10.       Osama Saadi

                                                            11.       Wiam Shabita

                                                            12.       Yousouf Fadila

                                                            13.       Meretz Faction

                                                            14.       MK Stav Shaffir

15.       Reform Movement for Religion and State – Israel Movement for Progressive Judaism  

16.       Tag Meir Forum

Appellants in EA 1867/19:               1.         Dr. Michael Ben Ari

                                                            2.         Itamar Ben Gvir, Adv.

                                                            3.         Hoshaya Harari

                                                            4.         Yochai Revivo

                                                            5.         MK David Bitan

                                                            6.         Elidor Cohen

                                                            7.         Yaakov (Kobi) Matza

                                                            8.         Yigal Harari

                                                            9.         Yaakov Dekel

                                                            10.       Shimon Boker

                                                            11.       Yossi Shalom Haim Rozenboim

Appellant in EA 1876/19:                             Ra’am List

 

                                                                        v.

 

Respondents in EDA 1806/19:         1.         Dr. Ofer Cassif

                                                            2.         Attorney General

Respondents in EA 1866/19:            1.         Dr. Michael Ben Ari

                                                            2.         Itamar Ben Gvir, Adv.

                                                            3.         Central Elections Committee for the 21^st Knesset

                                                            4.         Attorney General

Respondents in EA 1867/19:            1.         Hadash-Ta’al List

                                                            2.         Central Elections Committee for the 21^st Knesset

                                                            3.         Attorney General

Respondents in EA 1876/19:            1.         Central Elections Committee for the 21^st Knesset

                                                            2.         Likud Faction et al.

                                                            3.         Dr. Michael Ben Ari et al.

                                                            4.         Attorney General

                                                            5.         The Knesset

 

EDA 1806/19: Approval procedure under sec. 7A(b) of Basic Law: The Knesset and sec. 63A(b) of the Knesset Elections Law [Consolidated Version], 5729-1969

EA 1866/19: Appeal under sec. 63A(d) and sec. 65(A1) of the Knesset Elections Law [Consolidated Version], 5729-1969

EA 1867/19: Appeal under sec. 64(a1) of the Knesset Elections Law [Consolidated Version], 5729-1969

EA 1876/19: Appeal under sec. 64(a) of the Knesset Elections Law [Consolidated Version], 5729-1969

 

The Supreme Court

Before: President E. Hayut, Justice N. Hendel, Justice U. Vogelman, Justice I. Amit, Justice N. Sohlberg, Justice M. Mazuz, Justice A. Baron, Justice G. Karra, Justice D. Mintz

 

Supreme Court cases cited:

1.         EDA 11280/02 Central Elections Committee for the Sixteenth Knesset v. MK Ahmad Tibi, IsrSC 57 (4) 1 (2003)

 

2.         EA 561/09 Balad – National Democratic Alliance v. Central Elections Committee for the 18^th Knesset (Jan. 21, 2009)

3.         EDA 9255/12 Central Election Committee for the 19th Knesset v. MK Hanin Zoabi (Feb. 18, 2015)

4.         EA 2/84 Neiman v. Chairman of the Central Elections Committee for the 11^th Knesset, IsrSC 39(2) 225 (1985) [https://versa.cardozo.yu.edu/opinions/neiman-v-chairman-elections-committee]

5.         EA 1/88 Neiman v. Chairman of the Central Elections Committee for the 12^th Knesset, IsrSC 42(4), 177 (1988) [https://versa.cardozo.yu.edu/opinions/kach-v-central-election-committee-twelfth-knesset]

6.         EDA 1095/15 Central Election Committee for the 20^th Knesset v. Hanin Zoabi, (Dec. 10, 2015)

7.         LCA 7504/95 Yassin v. Registrar of Parties, IsrSC 50(2) 45 (1996)

8.         EA 1/65 Yaakov Yeredor v. Chairman of the Central Elections Committee for the 6^th Knesset, IsrSC 19(3) 365 (1964) [https://versa.cardozo.yu.edu/opinions/yeredor-v-chairman-central-elections-committee-sixth-knesset]

9.         EA 2/88 Ben Shalom v. Central Elections Committee for the 12^th Knesset, IsrSC 43(4) 221 (1989)

10.       EA 2805/92 Kach List v. Chairman of the Central Elections Committee for the 13^th Knesset (unpublished)

11.       EA 2858/92 Movshovich v. Chairman of the Central Elections Committee for the 13^th Knesset, IsrSC 46(3) 541 (1992)

12.       HCJ 5744/16 Ben Meir v. Knesset, (May 27, 2018)

13.       HCJ 11225/03 Azmi Bishara v. Attorney General, IsrSC 60(4) 287 (2006)

14.       HCJ 2684/12 Movement to Strengthen Tolerance in Religious Education et. al. v. Attorney General, (Dec. 9, 2015)

15.       HCJ 392/72 Berger v. District Planning and Building Council, Haifa District, IsrSC 27(2) 764 (1973)

16.       HCJ 547/98 Federman v. Government of Israel, IsrSC 53(5) 520 (1999)

17.       AAA 8342/02 Ben Gvir v. Commissioner of Police, IsrSC 57(1) 61 (2002)

18.       LCA 6709/98 Attorney General v. Moledet Gesher-Tzomet List for the Nazereth Illit Local Council Elections, IsrSC 53(1) 351

19.       HCJ 4552/18 Zahalka v. Speaker of the Knesset, (Dec. 30, 2018)

20.       EA 2600/99 Erlich v. Chair of the Central Elections Committee, IsrSC 53(3) 38 (1999)

21.       HCJ 5364/94 Wilner v. Chair of the Israel Labor Party, IsrSC 49(1) 758 (1995)

22.       HCJ 14/86 Laor v. Theater and Film Review Board, IsrSC 41(1) 421 (1987)

23.       HCJ 399/85 MK Rabbi Meir Kahane v. Broadcasting Authority Directorate, IsrSC 41(3) 255 (1987)

24.       HCJ 7754/14 Tzalul Environmental Association v. Petroleum Commissioner, (Dec/ 28, 2016)

25.       HCJ 2257/04 Hadash-Ta’al Faction v. Chair of the Central Elections Committee for the 17th Knesset, IsrSC 58 (6) 685 (2004)

26.       CA 4096/18 Chacham and Or-Zach Advocates v. Assessment Officer – Akko, (May 25, 2019)

27.       CrimA 7007/15 Shmil v. State of Israel, (Sept. 5, 2018)

28.       CA 8742/15 Astrolog Publishers Ltd., v. Ron, (Dec. 3, 2017)

29.       CrimA 961/16 Alharoush v. State of Israel, (Nov. 25, 2018)

30.       AAA 3326/18 A. v. Director of Firearm Licensing, Southern District – Ministry of Public Security, (Feb. 26, 2019)

31.       HCJ 7052/03 Adalah Legal Center for Arab Minority Rights in Israel v. Minister of Interior, IsrSC 61(2) 202 (2006) [https://versa.cardozo.yu.edu/opinions/adalah-legal-center-arab-minority-rights-israel-v-minister-interior]

32.       HCJ 7625/06 Martina Rogachova v. Ministry of Interior, (March 31, 2016) [https://versa.cardozo.yu.edu/opinions/rogachova-v-ministry-interior]

33.       EA 2600/99 Ehrlich v. Chair of the Central Elections Committee, IsrSC 53(3) 38 (1999)

34.       CrimA 6833/14 Naffaa v. State of Israel, (Aug. 31, 2015)

35.       EDA 50/03 Central Elections Committee for the 16^th Knesset v. Tibi, IsrSC 57(4) 1 (2003)

 

 

Judgment (Reasoning)

(July 18, 2019)

 

President E. Hayut:

Introduction

1.         On March 6, 2019, the Central Elections Committee for the 21^st Knesset (hereinafter: the Elections Committee or the Committee) approved a request for the disqualification of Dr. Ofer Cassif (hereinafter: Cassif) from running as a candidate for the Knesset on the list of “Hadash – headed by Ayman Odeh, Ta’al – headed by Ahmed Tibi” (hereinafter: Hadash-Ta’al) but rejected a request to disqualify the Hadash-Ta’al list in its entirety. The Committee further accepted two requests to disqualify the Ra’am-Balad list (hereinafter: Ra’am-Balad) and to bar Advocate Itamar Ben Gvir from standing for election.

            These decisions were the focus of the appeal and approval proceedings before us.

            The three appeals – EA 1866/19, EA 1867/19 and EA 1876/19 – which will be presented below, were filed on March 12, 2019, in accordance with sec. 63A(d) of the Knesset Elections Law [Consolidated Version], 5729-1969 (hereinafter: the Elections Law) (in regard to the disqualification of a candidate) and secs. 64(a) and 64(a1) of that Law (in regard to the disqualification of lists). The approval proceeding – EDA 1806/19 – was filed on March 10, 2019 by the Elections Committee, in accordance with the provisions of sec. 63A(b) of the Elections Law and sec. 7A(b) of Basic Law: The Knesset (hereinafter: Basic Law: The Knesset or the Basic Law).

2.         Sections 63A(e) and 64(b) of the Elections Law require that the Court issue a judgment in appeal and approval proceedings “no later than the 23^rd day prior to Election Day”. In regard to the elections for the 21^st Knesset, which took place on April 9, 2019, we were therefore required to render judgment in the appeal and approval proceedings no later than March 17, 2019. Under the time constraint from the time of the filing of the proceedings – March 10, 2019, and March 12, 2019 – to the date upon which we were required to render judgment – March 17, 2019 – we allowed the Respondents in each of the proceedings to file written pleadings, and we heard supplementary oral arguments before a nine-judge panel, as required by the Law.  The hearings took place on Wednesday, March 13, 2019, and Thursday, March 14, 2019, and the judgment was duly handed down on Sunday, March 17, 2019, without stating reasons in view of the statutory time constraints detailed above, and as has been usual in such proceedings over the years (see, for example: EDA 11280/02 Central Elections v. Tibi, [1]; EA 561/09 Balad – National Democratic Alliance v. Central Elections Committee for the 18^th Knesset [2]; EDA 9255/12 Central Election Committee v. Zoabi [3]). In the judgment, a majority of eight justices, against the dissenting opinion of Justice D. Mintz, decided not to approve the decision of the Elections Committee in the matter of the disqualification of Cassif. The Court unanimously decided to reject the appeal in regard to the Elections Committee’s decision not to disqualify the Hadash-Ta’al list. The Court also decided, by a majority of eight justices, against the dissenting opinion of Justice D. Mintz, to grant the appeal in regard to the Ra’am-Balad list, and to order that the list is not barred from participating in the Knesset elections. The Court further unanimously rejected the appeal in regard to the decision not to disqualify Ben Gvir, and decided by a majority, against the dissenting opinion of Justice N. Sohlberg, to grant the appeal in the matter of Ben Ari and order his disqualification as a candidate for the 21^st Knesset. Four days later, on March 21, 2019, we published a summary of the reasoning grounding the judgment, and we now present the full reasoning.

 

General Background and Normative Framework

3.         The right to vote and be elected is the life breath of every democratic regime, and the conceptual foundation of this right is grounded in the fundamental principles of equality and freedom of political expression (EA 2/84 Neiman v Central Elections Committee [4], 262-264 (hereinafter: the first Neiman case); EA 1/88 Neiman v Central Elections Committee [5], 185 (hereinafter: the second Neiman case); EA 561/09 Balad v. Central Elections Committee [2], para. 2 (hereinafter: the Balad case); EDA 9255/12 Central Election Committee v. Zoabi [3], para. 7 (hereinafter: the first Zoabi case); EDA 1095/15 Central Elections Committee v. Zoabi [6], para. 5 (hereinafter: the second Zoabi case); cf. LCA 7504/95 Yassin v. Registrar of Parties [7], 58-60 & 71 (hereinafter: the Yassin case); Ruth Gavison, Twenty Years since the Yeredor Ruling – The Right to be Elected and the Lessons of History, in A. Barak (ed.), Essays in Honor of Shimon Agranat, (1986), 145, 151-152 (in Hebrew) (hereinafter: Gavison)).

            Nevertheless, equality and freedom of political expression are not unrestricted rights, and it has already been held that “it is the right of a democracy to deny the participation in the democratic process of lists that reject democracy itself […] one who does not accept the fundamental principles of democracy and seeks to change them cannot ask to participate in democracy in the name of those principles” (EDA 11280/02 Central Elections Committee v. Tibi [1], 14 (hereinafter: the Tibi case); and further see the Yassin case, p. 62, the first Zoabi case, para. 8; the second Zoabi case, para. 6). Therefore, along with the formal capacity conditions that must be met in order to realize the right to vote and be elected, which concern, inter alia, age and citizenship (see: sec. 5 of Basic Law: The Knesset in regard to the right to vote, and secs. 6, 6A and 7 of that Law in regard to the right be elected), there is a need for material restrictions intended to prevent participation in the elections by lists and candidates that seek to use the tools of democracy in order to deny the very existence of the state or infringe its fundamental principles.

4.         As will be explained in the brief survey below, such material restrictions have been developed over the years in Israeli law, as well. At its inception, the State of Israel adopted a democratic regime characterized, inter alia, by the values of equality and freedom of political expression mentioned above. Alongside those values, and without any necessary contradiction, the sovereign State of Israel was established as a Jewish state, in recognition of the right of the Jewish people to national rebirth in its land. This important fundamental principle, which Justice M. Cheshin defined as an “axiom” when he served as chair of the Central Elections Committee for the 16^th Knesset, must also be protected. President A. Barak addressed this in the Tibi case, stating:

There are many democratic states. Only one of them is a Jewish state. Indeed, the reason for the existence of the State of Israel is its being a Jewish state. This character is central to its existence, and it is – as Justice M. Cheshin stated before the Central Elections Committee – an “axiom” of the state. It should be seen as a “fundamental principle of our law and system” (emphasis original; ibid., p. 21).

President D. Beinisch addressed the uniqueness of Israeli democracy in this regard in the Balad case, noting:             

The State of Israel’s being the only state that serves as a home for the Jewish people, and therefore preserves unique characteristics worthy of protection, is the starting point for every discussion of the character of the state (ibid., para. 3).

In this regard, it would not be superfluous to note that there are those who hold the opinion that there is a “significant moral tension that requires a process of reconciliation between opposing values (Justice I. Englard in the Tibi case, p. 64. For a detailed discussion of this subject, see:  Adi Gal & Mordechai Kremnitzer, Disqualification of Party Lists and Candidates – Does it Strengthen Democracy or Weaken It? (Israel Democracy Institute, 2019) 22-26 (Hebrew)). As opposed to this, there are those who are of the opinion that there is no contradiction between democratic values and Jewish values, but rather they derive from one another (the second Neiman case, pp. 189-190; Justice Y. Amit in the second Zoabi case, para. 3; Elyakim Rubinstein, On the Equality of Arabs in Israel, 1 Kiryat Mishpat 17, 26 (20021) (Hebrew)). Below, we will address the material restrictions established in regard to the right to vote and be elected in Israeli law. As  will be seen, these restrictions define Israel as a Jewish and democratic state without distinction between these two frameworks, in the spirit of the principles we addressed above.

5.         Since 1985, the material constitutional restrictions upon the right to vote have been grounded in sec. 7A of Basic Law: The Knesset. This section, in its current form, establishes:

7A(a).  A candidates list shall not participate in elections to the Knesset, and a person shall not be a candidate for election to the Knesset, if the goals or actions of the list or the actions of the person, expressly or by implication, include one of the following:

(1) negation of the existence of the State of Israel as a Jewish and democratic state;

(2) incitement to racism;

(3) support for armed struggle by a hostile state or a terrorist organization against the State of Israel.

6.         As already noted, these restrictions developed in Israeli law over the course of years. Basic Law: The Knesset, which was enacted in 1958, did not originally comprise a material provision – as opposed to a formal provision in regard to competence – that restricted the right to be elected. The absence of such a provision notwithstanding, in EA 1/65 Yeredor v. Chairman of the Central Elections Committee [8] (hereinafter: the Yeredor case), the Court recognized the authority of the Elections Committee not to approve the participation of the Socialists list in the elections for the 6^th Knesset because the list, and the El Ard organization with which it identified, “deny the integrity of the State of Israel and its very existence”. Some twenty years later, the Court again addressed the disqualification of a list from standing for election. The Central Elections Committee for the elections for 11^th Knesset in 1984 disqualified the Kach list and the Progressive List for Peace from standing for election. The Kach list was disqualified by the Committee for the racist and anti-democratic principles that it espoused, its open support for terrorism, and incitement of hatred and hostility between different sectors of the Israeli populace. The Progressive List for Peace was disqualified due to the Committee’s determination that the list comprised subversive foundations and tendencies and that central members of the list acted in a manner that identified with the state’s enemies. The disqualification of the two lists was brought before the Court in the first Neiman case, which held, by majority, that in the absence of an express provision of law, the doctrine established in the Yeredor case should be limited to the causes for disqualification set out there, i.e., denial of the very existence of the state – which must be proven by clear, unequivocal, and persuasive evidence (for a critique, see Gavison, at pp. 184-195).

7.         Following the judgment in the first Neiman case, the legislature amended Basic Law: The Knesset and added sec. 7A. This section, in its original form, comprised three causes for disqualifying a list of candidates whose purposes or actions expressly or impliedly amounted to (1) negation of the existence of the state as the state of the Jewish people; (2) negation of the democratic character of the state; (3) incitement to racism.

            When the Kach list again sought to stand for election for the 12^th Knesset in 1988, the list was disqualified by the Elections Committee for the reasons set out in subsecs. (2) and (3) of sec. 7A. The appeal of the decision was denied by the Court (see: the second Neiman case), which held that the list indeed negated the democratic character of the state and that its activities constituted incitement to racism. In its decision, the Court emphasized that given the importance of the freedoms that the rights to vote and to be elected are intended to realize, affirming those rights is preferable to denying them, and the disqualification of a list must be reserved for the most extreme cases. That year, the Court also adjudicated another proceeding related to the elections for the 12^th Knesset. The Court majority denied an appeal of a decision by the Central Elections Committee not to disqualify The Progressive List for Peace from standing for election (EA 2/88 Ben Shalom v. Central Elections Committee [9]). In 1992, after the murder of the founder of the Kach movement, Rabbi Meir Kahane (hereinafter: Rabbi Kahane), in 1990, the Central Elections Committee disqualified two lists that viewed themselves as the heirs to Rabbi Kahane from participating in the elections for the 13^th Knesset. A unanimous Court denied the appeals of the disqualifications, adopting the criteria established in the second Neiman case (EA 2805/92 Kach List v. Chairman of the Central Elections Committee [10] (hereinafter: the Kach case)); EA 2858/92 Movshovich v. Chairman of the Central Elections Committee [11] (hereinafter: the Movshovich case)).       

8.         In 2002, sec. 7A of the Basic Law was amended. The amendment comprised three primary changes: (1) the separate causes for disqualification in regard to negating the existence of the State of Israel as a Jewish state and as a democratic state were unified as one cause; (2) an additional cause was added under which a list could be disqualified from participation in elections if it supported armed struggle by a hostile state or a terrorist organization against the State of Israel; (3) it was established that not only could an entire list be disqualified, but also a candidate could be disqualified from standing for election, but that as opposed to the disqualification of a list, the disqualification of a candidate required the approval of the Supreme Court.

9.         In the Tibi case, the Court addressed a number of decisions given by the Central Elections Committee for the 16^th Knesset in regard to the elections in January 2003, among them the first decisions of their kind pursuant to the aforementioned amendment to sec. 7A of the Basic Law. The Elections Committee decided to disqualify Knesset members Ahmed Tibi of the Hadash-Ta’al list (hereinafter: Tibi) and Azmi Bishara of the Balad list (hereinafter: Bishara). The Committee further decided that Baruch Marzel of the Herut list (hereinafter: Marzel) should not be disqualified. In addition, the Committee decided to disqualify the Balad list from standing for election. In the Tibi case, the Court focused upon and outlined the criteria for each of the causes in sec. 7A of the Basic Law. On that basis, the Court decided not to approve the Election Committee’s decision to disqualify Knesset members Tibi and Bishara from standing for election. The decision in regard to Tibi was unanimous, whereas the decision in regard to Bishara was by a majority. A majority further dismissed the appeal of the Committee’s decision to permit Marzel’s candidacy, and the appeal against the disqualification of the Balad list was granted by a majority, and it was held that the list could stand for election.

10.       Another amendment to sec. 7A of the Basic Law was adopted in 2008, adding sec. (a1) that established: “In connection with this article, a candidate who was illegally present in an enemy state in the seven years that preceded the deadline for submitted lists of candidates shall be considered someone whose actions constitute support for an armed conflict against the State of Israel, unless he has proven otherwise”. About a year after that amendment, prior to the elections for the 18^th Knesset, the Court addressed an appeal of the Elections Committee’s decision to disqualify the Balad and Ra’am-Ta’al list for the causes enumerated in secs. 7A(a) and (3) of the Basic Law. A majority of the Court granted the appeal, and            the participation of those lists was permitted. In 2012 and 2015, the Court was again called upon to address the disqualification of candidates. In the first Zoabi case, the Court unanimously overturned the Central Election Committee’s decision to disqualify Knesset member Hanin Zoabi (hereinafter: Zoabi) from running in the elections for the 19^th Knesset for the causes enumerated in secs. 7A(a)(1) and (3) of the Basic Law. In the second Zoabi case, two approval proceedings were addressed jointly after the Central Elections Committee disqualified Zoabi’s participation in the elections for the 20^th Knesset for the causes enumerated in sec. 7A(a)(1) and (3) of the Basic Law, and also disqualified Marzel from participating in those same elections for the causes enumerated in secs. 7A(a)(1) and (2). A majority of the Court decided not to approve the Elections Committee’s decisions in regard to both Zaobi and Marzel, and both stood as candidates in those elections.

11.       The judgment in the second Zoabi case was rendered in 2015. In 2017, section 7A of the Basic Law was amended again to add the words “including his expressions” after the words “the actions of the person”. It is important to emphasize that, as opposed to various arguments raised before us in these proceedings, this amendment – as stated in its Explanatory Notes – “was not intended to change the case law of the Court according to which sec. 7A of the Basic Law should be used sparingly and strictly in order to protect the most vital interests of the state”. In other words, the strict evidentiary threshold outlined in the case law over the years for proving the existence of the causes for disqualification remains as it was, given the purpose of the section and the balance between the values it is intended to protect.

            To complete the picture, we would note that in 2016, the Knesset approved an amendment to the Basic Law in regard to the termination of the tenure of a member of the Knesset for incitement to racism or support of armed struggle by an enemy state or of a terrorist organization against the State of Israel, as stated in secs. 7A(a)(2) or 7A(a)(3) of the Basic Law. We would further note for the sake of completing the picture that two petitions filed against the constitutionality of the said amendment were denied (HCJ 5744/16 Ben Meir v. Knesset [12]) (hereinafter: the Ben Meir case).

 

The Causes for Disqualification established in Section 7A

12.       Having surveyed the proceedings and legislative amendments relevant to the disqualification of lists and candidates seeking to stand for election to the Knesset and the development of the case law and the Basic Law in this regard, it would now be appropriate to address the interpretive principles and the criteria outlined and applied in all that regards the various causes for disqualification. I would preface by stating that the prevailing trend in this Court’s case law is that a cautious, restrained approach should be adopted in all that relates to the disqualification of lists and candidates participating in Knesset elections. Indeed, in view of the magnitude of the rights to vote and be elected, this Court has repeatedly held that the starting point is that the causes for disqualification should be interpreted narrowly and should be applied in the most extreme cases (see, for example, the second Neiman case, at p. 187; the Tibi case, at pp. 17-18). From this starting point, the case law derived the answer to the question of what must be proved in order to ground the presence of any of the causes for disqualification, as well as the criteria in regard to the required evidentiary threshold. We will first examine the case-law interpretation of what is required to prove each of the causes for disqualification, and then examine the criteria established in regard to the required evidentiary threshold.

(1) Negation of the existence of the State of Israel as a Jewish and democratic state

13.       The first cause established under sec. 7A(a)(1) of Basic Law: The Knesset concerns preventing participation of candidate lists or candidates in the elections if the purposes or actions of the list or the actions of the candidate, including his statements, constitute a negation of the existence of the State of Israel as a Jewish and democratic state. The “nuclear-minimal” characteristics of the State of Israel as a Jewish state and its “nuclear-minimal” characteristics as a democratic state were established in the Tibi case, which held that it is the infringement of these characteristics that may give rise to a cause for disqualification under sec. 7A(a)(1) of the Basic Law. In the matter of the “nuclear” characteristics that define the State of Israel as a Jewish state, it was held that these include the right of every Jew to immigrate to the State of Israel, in which there will be a Jewish majority; that Hebrew is the primary official language of the state; that the symbols and holidays of the state primarily reflect Jewish tradition, and that the Jewish heritage is a central element of the religious and cultural heritage of the state (the Tibi case, p. 22; and compare the view of Justice Y. Turkel in that case at p. 101; and see the second Zoabi case, para. 66, and the first Zoabi case, para. 20; the Balad case, para. 6; and compare the Yassin case, p. 66; the opinion of Justice S. Levin in the Ben Shalom case, p. 248; and see: Amnon Rubinstein & Raanan Har-Zahav, Basic Law: The Knesset, 64 (1993) (Hebrew)).

            As for the “nuclear” characteristics of the State of Israel as a democratic state, it was held that “these characteristics are based […] upon recognition of the sovereignty of the people, as expressed in free, equal elections; recognition of the core human rights, among them human dignity, respect and equality, maintaining the separation of powers, the rule of law and an independent judiciary” (the Tibi case, p. 23; and see the second Zoabi case, para 29; and compare the Yassin case, p. 66). It was further noted in the Tibi case that a list that negates the right to vote for the Knesset on ethnic-national grounds, or a list seeks to change the regime by violent means will not be permitted to stand for election, as it essentially negates the democratic foundations of the Israeli regime (ibid., p. 24; and see the second Neiman case, p. 190, and the second Zoabi case, para. 30).

(2) Incitement to racism

14.       The second cause for disqualification, established in sec. 7A(a)(2), is incitement to racism. We will address the grounds of this cause and its underlying rationales, particularly in a Jewish state, at greater length below. At this stage, we would note that already in the second Neiman case, in which, for the first time following the enactment of sec. 7A of the Basic Law, the Kach list was disqualified on the grounds of incitement to racism, the Court held, per President M. Shamgar,  that the “objectives and conduct [of the list] are also clearly racist: systematically fanning the flames of ethnic and national hate, which causes divisiveness and animosity; calling for the forceful deprivation of rights; systematic and intentional degradation directed towards a specific part of the population selected because of their national origin and ethnicity; [calling] for their humiliation in ways very similar to the terrible experiences of the Jewish nation” (ibid., p. 197).

(3) Support for armed struggle by a hostile state or a terrorist organization against the State of Israel

15.       The third cause for disqualification, established in sec. 7A(a)(3) of the Basic Law, concerns support for armed struggle by a hostile state or a terrorist organization against the State of Israel. This cause is premised upon the primary conceptual justification for the disqualification of candidates and lists – viz., defense against those who would seek to negate the very existence of the state or undermine the foundations of its existence and its democratic nature by means of armed struggle (the first Zoabi case, para. 29). In the Tibi case, President A. Barak noted in regard to this cause that: “Democracy is allowed to prevent the participation of candidate lists that employ violence or support violence as a tool for changing the nature of the regime” (ibid., p. 26; and also see the second Zoabi case, para. 69). Preventing participation by virtue of this cause will, of course, be possible where a candidate or a list personally takes active part in an armed struggle of a terrorist organization or an enemy state, as well as where they encourage such a struggle or provide material, political or other support (ibid., para. 69; and see the Tibi case, p. 27; the Balad case, para. 7; the first Zoabi case, para. 29). Disqualification of a list or candidate by virtue of this cause would be possible only if the support is of an armed struggle by an enemy state or a terrorist organization (the Tibi case, p. 27; and see the second Zoabi case, para. 69; for a detailed discussion of this cause, see: Gal & Kremnitzer, 16-19).

 

The Criteria in regard to the Required Evidentiary Threshold

16.       Alongside the narrow interpretation of the causes for disqualification established under sec. 7A of the Basic Law, over the years, the case law further added a series of strict criteria in regard to the required evidentiary threshold for the crystallizing of any of the causes. These criteria limit the possibility of disqualifying a list or candidate from standing for election to the Knesset only to clear, extreme cases due to the intense caution that the Court adopts as the starting point in this regard (the Balad case, para. 3; and see the opinion of Justice S. Levin in the Ben Shalom case, p. 248; the Kach case, p. 2). Below, we will summarize the criteria outlined in the case law in regard to the evidentiary threshold required for the existence of the disqualifying causes. These criteria were, for the most part, first applied in regard to the disqualification of lists, and after the amendment of the Basic Law in 2002, they were respectively adopted in regard to the disqualification of an individual candidate, as well (see the Tibi case, the first Zoabi case and the second Zoabi case). These are the criteria:

            (-)        First, in order to decide whether one of the elements set forth in sec. 7A is present in the objectives or actions of a list or a candidate, it must be shown that the objective is one of the dominant characteristics of the list’s or the candidate’s aspirations or activities, and that they seek to participate in the elections in order to advance them (see the second Neiman case, p. 187; the Balad case, para. 4; the first Zoabi case, para. 14).

            (-)        Second, it must be shown that these central, dominant purposes can be learned from express declarations and direct statements or reasonable conclusions of clear, unequivocal significance (the second Neiman case, p. 188; the Tibi case, p. 18, the Balad case, para. 4; the first Zoabi case, para 14).

            (-)        Third, it must be shown that the list or the candidate actively works for the realization of the said objectives, and that there was non-sporadic activity for their realization. It was held that objectives of a theoretical nature are insufficient, and that there must be a showing of systematic, repeated activity whose “intensity must be given severe, extreme expression” (the second Neiman case, p. 196; the Tibi case, p. 18; the Balad case, para. 4; the first Zoabi case, para. 14).

            (-)        Fourth, the evidence grounding the actions or objectives sufficient to prevent standing for election to the Knesset must be “clear, unambiguous and persuasive” (the second Neiman case, p. 188; the Tibi case, p. 18; the second Zoabi case, para. 34; compare: the first Neiman case, p. 250), and a “critical mass” of highly credible evidence is required to justify the disqualification (the Tibi case, p. 43; the first Zoabi case, para. 14). The burden of proof in this regard rests upon the party arguing for disqualification of the list or candidate, and a doubt arising as to the sufficiency of the evidence must weigh against the disqualification (the second Neiman case, pp. 248-249; the Kach case, p. 3).

17.       A complex question concerning the evidentiary threshold for proving the causes for disqualification under sec. 7A of the Basic Law is that of whether to apply probability tests for the realization of the dangers that the causes for disqualification are intended to prevent. There is a difference of opinion in the case law, and the matter has been left for further consideration and has yet to be decided. The spectrum of opinions expressed on this matter range from an approach that rejects the application of the probability test (see the position of Justice M. Elon in the first Neiman case, p. 297; President M. Shamgar following the enactment of sec. 7A of Basic Law: The Knesset in the second Neiman case, p. 187; Justice S. Levin in the Ben Shalom case, p. 248; and Justices S. Levin. E. Mazza, and D. Dorner in the Tibi case, pp. 81, 96-97, and 99), to the opposite approach that is of the view that this test should be applied to each and every one of the disqualification causes in sec. 1A of the Basic Law (Justice E. Rivlin in the Tibi case, p. 106, and see Barak Medina, Forty Years to the Yeredor  Decision: The Right to Political Participation, 22 Mekhkarei Mishpat 327, 376-381 (2006) (Hebrew)). As noted, the matter has been left for further consideration and has not yet been decided in the case law (see President A. Barak and Justices A. Procaccia and D. Beinisch in the Tibi case, pp. 21, 88, 90; President D. Beinisch in the Balad case; President A. Grunis in the first Zoabi case, para. 34; President M. Naor in the second Zoabi case, para. 36).

            A middle position between these two opposing views on the application of the probability test has also been expressed, according to which a distinction can be drawn between the causes under sec. 7A(a)(1) and (3) and the cause concerning incitement to racism under sec. 7A(a) (2). Thus, for example, in the Tibi case, Justice Procaccia noted that “condemnation of incitement to racism and its removal from the political election process are values unto themselves, independent and unqualified even when unaccompanied by any probability of the realization of the potential danger. There is no need to seek manifest or hidden elements of danger in order to deny the entry of inciters to racism into the political arena […] incitement to racism is condemned as a value of the universal and national heritage, and it stands beyond the test for the probability of its foreseeable danger under any particular criterion. The contradiction between racism and the fundamental values of the state is so extreme that anyone who holds it as part of one’s political doctrine should be disqualified out of hand” (ibid., p. 90; Gal & Kremnitzer, 62-63). Another opinion that distinguishes the cause related to incitement to racism and the other causes in regard to the probability test, and which proposes applying a very low-level probability test to it, was expressed by Justice D. Beinisch in that matter, in stating: “If I were of the opinion that we should adopt the approach that applies ‘probability tests’ for the disqualification of lists or candidates, then in all that regards racism, I would hold that ‘racism’ in its ‘nuclear’ sense comprises, by its very nature, a potential for danger whose probability is a real possibility. Racism, by its very nature, may spread like a disease even when it appears that the scope of the political activity surrounding it is small, and the political prospects of the list or candidate are not serious. Racism is a type of disease for which isolation and removal from the political and social arena are conditions for preventing its spread” (p. 88). We will address this subject below, and examine whether there is, indeed, a place for a different approach to the cause of incitement to racism as opposed to the other causes in relation to probability tests.

            Another question that derives to some extent from the probability test and that concerns the necessary evidentiary threshold for proving the existence of the causes for disqualification is whether and to what extent there is a connection between the causes for disqualification and the criminal offenses intended to protect those values. In this regard, it would appear that the approach adopted in the case law holds that the Penal Law can assist in identifying the presence of the elements of causes for disqualification, while emphasizing that we are concerned with different methods for the prevention of the phenomena and that the tests applicable in each of the areas are not the same (see President M. Shamgar in the second Neiman case, p. 191; President A. Grunis in the first Zoabi case, para. 32; and see Gavison, p. 166; and cf. the Ben Meir case, para. 28; and HCJ 11225/03 Bishara v. Attorney General [13]).

 

An Elections Appeal and Approval of an Elections Committee Decision – What is the Difference?

18.       Basic Law: The Knesset distinguishes two types of decisions by the Central Elections Committee. The first is Elections Committee decisions to prevent or not prevent a candidate list from standing for election. Such decisions can be challenged in an appeal to the Supreme Court, under secs. 64(a) and 64(a1) of the Elections Law. The second is Election Committee decisions declaring that a particular candidate is barred from participating in the elections. Such a decision requires the approval of the Supreme Court, under sec. 7A(b) of Basic Law: The Knesset and sec. 63A(b) of the Elections Law, whereas an Elections Committee decision to deny a request to bar a candidate from standing for election is of the first type of decisions in the sense that it does not require approval but can be appealed to the Supreme Court, under sec. 63A(d) of the Elections Law.

            The procedure for approving an Elections Committee decision is not one of “regular” judicial review in the sense that decision is not consummated until approval is granted. In this, it differs from appeal proceedings in regard to Election Committee decisions, which come into force when given. The scope of the Court’s authority in an approval proceeding is not identical to that granted it in an appeal proceeding. It has been held in this regard that the Court must refrain from nullifying a decision under appeal even if it would have decided differently, as long as it is lawful and does not deviate from the margin of reasonableness. As opposed to this, in an approval proceeding, the Court is granted authority to examine whether it, itself, approves the disqualification of the candidate from standing for election (the Tibi case, pp. 28-31; the first Zoabi case, para 15; the second Zoabi case, paras. 12-13).  It is interesting to note that there are different approaches in the case law in regard to the scope of the Court’s intervention in the decisions of the Elections Committee due to the fact that it is primarily a political body that weighs political considerations. Thus, there are those who take the view that this fact justifies narrowing the scope of intervention in the Committee’s decisions (Justice E. Rivlin in the Tibi case, p. 109, and Justice S. Levin in the Ben Shalom case, p. 251). As opposed to this, there are those of the opinion that “this fact of the political composition of the Committee, with the exception of its chair, requires an examination of the merits of the Committee’s decision by the this Court in order to prevent political considerations from outweighing an objective legal examination” (Deputy President M. Elon in the Ben Shalom case, p. 279; for a similar view, see Justice D. Beinisch in the Tibi case, p. 86 and the Balad case, para. 16).

            This feature of the Central Elections Committee as a primarily political body that makes decisions influenced by political considerations, with no obligation to explain those decisions, indeed justifies examination and consideration by the legislature (see the comment of President Naor in the second Zoabi case, para. 78, and Gal & Kremnitzer, 61-62). At present, the Court is responsible for both types of proceedings brought before it in accordance with the provisions of Basic Law; The Knesset and the Elections Law, and the distinctions between them as presented above. In this regard, it would not be superfluous to further note what we held in this regard in another context – that of the Ben Meir case – in which it was argued that there is constitutional significance to the distinction between the two proceedings. In rejecting that argument, we held: “There is, indeed, a difference in the scope of authority granted to the Court in the framework of an elections appeal as opposed to an approval of a decision […] however, at the end of the day, this Court has the authority [even in an appeals proceeding – E.H.] to review the decision on the merits, and to oversee its lawfulness and reasonableness, including all that relates to the factual foundation” (ibid., para. 34).

19.       Having presented the general normative framework for the proceedings before us, I will now turn to an examination of each of the four proceedings and decide upon them.

EA 1866/19 Freij v. Ben Ari

20.       Three requests for the disqualification of Ben Ari and Ben Gvir were submitted to the Central Elections Committee. Two of the requests – that submitted by the Israel Religious Action Center - Israel Movement for Progressive Judaism and the Tag Meir Forum, and that submitted by MK Stav Shaffir – relied upon two causes for disqualification: negation of the existence of the State of Israel as a Jewish and democratic state under sec. 7A(a)(1) of Basic Law: The Knesset, and incitement to racism under sec. 7A(a)(2) of the Basic Law. The third request – submitted by members of the Meretz faction – relied upon the single cause of incitement to racism. After considering those requests, the Elections Committee decided, as noted, to reject all three requests, and thus the appeal before us, which was filed jointly by all the parties requesting disqualification.

 

Arguments of the parties

21.       The Appellants argue that Ben Ari and Ben Gvir have consistently acted for years to realize the racist doctrine of Rabbi Meir Kahane and the Kach list, which was disqualified from running for election, and act in an extreme manner to humiliate Israeli Arabs, including by calling for their expulsion from the country. According to the Appellants, Ben Ari and Ben Gvir support a racist ideology that seeks to undermine the principles of equality and human dignity in regard to anyone who is not Jewish. It was argued that the judgments that addressed the Kach list clearly established that its ideology is racist and infringes the fundamental principles of the democratic regime. The Appellants are of the opinion that the primary characteristic of the conduct of Ben Ari and Ben Gvir is ongoing incitement to racism, and that this is also expressed in the platform of the Otzma Yehudit party, which opposes democratic values. It was argued that the declarations of the two were consistently and continuously translated into severe actions that were, in part, also carried out by other elements of the Otzma Yehudit party.

22.       Ben Ari and Ben Gvir relied upon the Election Committee’s decision and argued that the appeal should be denied. According to them, the evidence presented by the Appellants does not justify their disqualification. Their primary argument was that the platform and their public activity over the years apply to those who are “an enemy of Israel”, who are not loyal to the state, and does not apply generally to all “the Arabs” as such, and supports and encourages the emigration of anyone who is not loyal “and who is an enemy of the state”. According to them, the fact that this Court did not disqualify Marzel from participating in the elections shows that they, too, should not be disqualified.

23.       The Attorney General was of the opinion that Ben Ari should be barred from participating in the elections on the grounds of incitement to racism. He argues that the Appellants presented persuasive, clear, unequivocal, recent evidence, particularly since May 2018, in which Ben Ari is heard speaking in various films, some of which were uploaded to his Facebook page. According to the Attorney General, we are concerned with ongoing, consistent expressions over a significant period of time that are at the hard core of incitement to racism. It was argued that these statements show that Ben Ari refers to the Arab population in its entirety while calling for a violent denial of the rights of the Arab population of the State of Israel and for their systematic, targeted humiliation on the basis of their ethno-national identity.

            As for Ben Gvir, the Attorney General was of the opinion that despite the fact that the collection of evidence in his regard is very troubling, and that some of his statements come “dangerously close to the line that would bar a person from standing for election to the Knesset”, he should not be disqualified. According to the Attorney General, as opposed to the evidence presented against Ben Ari, the evidence in regard to Ben Gvir is insufficient to constitute the persuasive, clear, unequivocal evidentiary foundation required for disqualification. This, because most of the evidence is not from the recent past, and in view of Ben Gvir’s declarations and explanations in the current disqualification hearings.

24.       As stated in the judgment we issued without the reasoning on March 17, 2019, we decided by majority, against the dissenting view of Justice N. Sohlberg, to adopt the position of the Attorney General and grant the appeal in EA 1866/19 in all that regards Ben Ari, and to order his disqualification form standing as a candidate in the elections for the 21^st Knesset, while we unanimously decided to deny the appeal in the matter of Ben Gvir.

 

Disqualification of a Candidate on the grounds of Incitement to Racism

25.       Racism is a well-known societal disease from which the human race has suffered since time immemorial. Racism shows its ugly face in hatred and incitement to hatred of the other, simply by reason of inborn traits or communal, religious, ethnic, or national affiliation. It strips people of their humanity on the basis of those affiliations and violates the basic right to human dignity and equality granted to all who are created in God’s image (HCJ 2684/12 Movement to Strengthen Tolerance in Religious Education et. al. v. Attorney General [14], para. 26 of the opinion of Justice S. Joubran) (hereinafter: the Torat Hamelech case)). The democratic State of Israel was established as the state of the Jewish people, which has experienced unparalleled racial persecution and suffering throughout the ages. Racism stands in absolute contradiction to the fundamental values upon which the state was established, and we, as Jews, have a special obligation to fight it uncompromisingly. Justice Z. Berenson addressed this in 1973 in HCJ 392/72 Berger v. District Planning and Building Council [15], 771, stating:

When we were exiled from our land and removed far from our country, we became victims of the nations amongst whom we lived, and in every generation, we tasted the bitterness of persecution, malice and discrimination only for being Jews “whose laws are different from those of any other people” [Esther 3:8]. With this bitter, miserable experience that seeped deep into our national and human consciousness, it might be expected that we would not walk in the corrupt path of the nations, and that with the renaissance of our independence in the State of Israel, we would be cautious and be wary of any hint of discrimination and unequal treatment against any law-abiding non-Jewish person [..] Hatred of foreigners is a double curse: it corrupts the image of God of the hater and inflicts evil upon the blameless hated. We must show humanity and tolerance to everyone created in God’s image (HCJ 392/72 Berger v. District Planning and Building Council, IsrSC 27(2) 764, 771 (1973); and see and compare: the Tibi case, p. 89; the opinion of Deputy President E. Rubinstein in the Torat Hamelech case, para. 38 and in the second Zoabi case (dissenting in regard to the result), para. 116).

26.       The Israeli legislature took up this mission following the elections for the 11^th Knesset, which took place in 1984, and in the course of which, as noted, the disqualification of the Kach party was requested due to incitement to racism (the first Neiman case). Thus, Amendment no. 9 to Basic Law: The Knesset added sec. 7A, which sets out the causes permitting the disqualification of a list from standing for election, among them that of incitement to racism. The Explanatory Notes the bill explain in this regard that this cause is premised upon the recognition of the severity and danger of the phenomenon of racism” (Basic Law: The Knesset (Amendment no, 9) Bill), and in the plenary session for the second and third readings of the bill, the chair of the Constitution, Law and Justice Committee, MK Eliezer Kulas stated:

Democracy is the “credo” of the people and their way of life. One must be educated to democracy and democracy must be defended. In a democracy, there is no place for incitement to racism, no place for racism, no place for harming any person on the basis of race, religion, nationality, or sex. Racism and discrimination are contrary to the character of a democratic regime and the character of the Jewish people, which experienced what racism is on its own flesh (Transcript of the 118^th session of the 11^th Knesset, p. 3898 (July 31, 1985) (hereinafter: Transcript of Session 118 of the Knesset)).

            In regard to our special, historical duty as Jews to fight against racism, Prof. Gavison noted in her 1986 article (cited above):

The Israeli legislature added this cause for disqualification for various historical reasons. I view incitement to racism as a particular (severe) instance of value inconsistency. Incitement to racism is an extreme rejection of the obligation to the equal value of the person. On the basis of the lessons of history of the last century, in which Jews were innocent victims of such incitement, there is complete justification for designating incitement to racism as an express form of incompatibility with the fundamental values of the state (ibid., p. 161).

27.       In parallel to Amendment no. 9 of Basic Law: The Knesset, the Penal Law, 5737-1977 (hereinafter: the Penal Law) was also amended to add the offense of incitement to racism. “Racism” was defined in sec. 144A of the Law as “persecution, humiliation, degradation, a display of enmity, hostility or violence, or causing violence against a public or parts of the population, all because of their color, racial affiliation or national ethnic origin”. Then Minister of Justice Moshe Nissim addressed the relationship between these two amendments in stating: “We must view both of these bills as of a piece, […] for the fundamental, proper, considered, and balanced treatment […] of phenomena with which the State of Israel cannot be reconciled” (Transcript of Session 118 of the Knesset, p. 3361), while it was noted in the Explanatory Notes of the amendment to the Penal Law that “the Hebrew heritage deems the dignity and value of the person, created in God’s image, and making peace among people as exalted values. […] Jewish heritage views the demeaning of human dignity as a serious offense” (Explanatory Notes to the Penal Law (Amendment no. 24) Bill, 5745-1985, p. 195).

            In the second Neiman case, President M. Shamgar addressed, inter alia, the definition of the term “racism” in the Penal Law and held that for the purpose of interpreting sec. 7A of the Law, there is no need to achieve a definitive definition of the term “incitement to racism”. President Shamgar also rejected the argument of counsel for the Kach list according to which “racism” refers only to biological distinctions, holding: “Different forms of persecution based on nationality are widely accepted today as a form of racism” (the second Neiman case, p. 192; for a discussion of the relationship between the offense of incitement to racism under sec. 144B of the Penal Law and sec. 7A, see: the first Zoabi case, para. 32; and compare Gavison, pp. 170-171).  Denunciation of incitement to racism, and the struggle against it in the legal field also found expression in other legislative acts (see, for example, sec. 1(a1) of the Knesset Members Immunity, Rights and Duties Law, 5711-1951; sec. 5 of the Political Parties Law, 5752-1992; sec. 42A of Basic Law: The Knesset; and sec. 39A(3) of the Municipal Authorities (Elections) Law, 5725-1965).

28.       Combatting incitement to racism and provisions banning political activity of various groups on that basis can also be found abroad. Thus, for example, the President of France is authorized to order the disbanding of political parties for various reasons, among them incitement to racism or other group discrimination. The President’s decision can be appealed to the French Supreme Administrative Court (Conseil d’Etat) (Gal & Kreminitzer, 43-45; Gregory H. Fox & George Nolte, Intolerant Democracies, 36 Harv. Int. L. J. 1, 27-29 (1995); European Commission for Democracy through Law (Venice Commission), Guidelines on Prohibition and Dissolution of Political Parties and Analogous Measures, 16 (1999) (hereinafter: the Venice Commission Report)). Spanish law allows for declaring a political party unlawful if it systematically infringes fundamental freedoms and rights by encouraging or justifying the assault, exclusion or persecution of people on the basis of ideology, belief, faith, nationality, race, sex or sexual orientation (Knesset Research and Information Center, International Parallels to sec. 7A of Basic Law: The Knesset and their Possible Consequences for the Termination of the Tenure of Members of Parliament, pp. 8-9 (2006) (hereinafter: the RIC Report); Erik Bleich, The Freedom to be Racist?: How the United States and Europe Struggle to Preserve and Combat Racism, p. 103 (2011); Gur Bligh, Defending Democracy: A New Understanding of the Party-Banning Phenomenon, 46 VNTJL 1321, 1338 (2013); Venice Commission Report, p. 16). The Czech Republic’s Political Party Law of 1991 prohibits the registration of parties whose activities endanger the rights and freedoms of citizens, and in 2010, the Czech Workers’ Party was banned, inter alia, because of incitement to racism (Miroslav Mareš, Czech Militant Democracy in Action: Dissolution of the Workers’ Party and the Wider Context of this Act, 26(1) East European Politics & Societies 33, 43-44 (2010); Mapping “Militant Democracy”: Variation in Party Ban Practices in European Democracies (1945–2015), 13(2) Euconst. 221, 238-239 (2017) (hereinafter: Mapping Militant Democracy); RIC Report, p. 17; Venice Commission Report, p. 16). There are similar restrictions in Poland, Portugal, Belarus, Ukraine, Bulgaria, and Romania (Venice Commission Report, pp. 16-17; RIC Report, pp. 10-12). The Penal Code of the Netherlands allows for the disbanding of organizations that endanger public safety, and by virtue of this law, it was held that the Centre Party ’86 encouraged discriminatory propaganda against foreigners and was a danger to the public. It was, therefore, disbanded in 1998 (Defending Democracy, p. 1339; Paul Lucardie, Right-Wing Extremism in the Netherlands: Why it is Still a Marginal Phenomenon, presented at Symposium, Right-Wing Extremism in Europe, 4-5 (2000); Mapping Militant Democracy, p. 238; for a comprehensive survey of the existing arrangements in various countries in regard to the disqualification of political parties and candidates in general, see, e.g., the Tibi case, pp. 14-15; the first Zoabi case, paras. 10-11; Talia Einhorn, Proscription of Parties that have a Racist Platform under Art. 7A of the Basic Law: The Knesset (1993)).

29.       The ban upon organizations that incite to racism is also grounded in international human rights law, which includes provisions treating of the prohibition of organized racist propaganda activities. For example, sec. 4(b) of the International Convention on the Elimination of All Forms of Racial Discrimination (ratified by Israel in 1979) establishes, inter alia, that the signatory states “Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination […]”. Based, in part, on that convention, in 2018, the European Parliament passed a resolution in regard to the growing violence by European political groups and parties with a neo-fascist, neo-Nazi, racist or xenophobic agenda, and called upon the EU member states to adopt a number of concrete measures for effectively combatting the activities of those groups (see: European Parliament Resolution of 25 October 2018 on the rise of neo-fascist violence in Europe (2018/2869(RSP)).

30.       In Israel, in 2016, the State Comptroller, Judge (emer.) Yosef Haim Shapira, published a report that examined the activities of the Ministry of Education to promote education for living in common and for preventing racism, and found that not enough had been done in this area over the last years, given the differences among sections of the Israeli population that lead to discord and strife. The report further noted that “in this complex reality, we have experienced serious phenomena of hatred, racism, violence, divisiveness, sectarianism, and intolerance over the last few years” and “racist and violent statements, discrimination, persecution and even shocking hate crimes have become not so infrequent occurrences […] while the social networks serve as a fertile ground for disseminating hatred of the other” (State Comptroller, Education to Common Life and for the Prevention of Racism – Special Comptroller’s Report, p. 8 (2016)).

31.       Indeed, the fundamental values of the State of Israel as a Jewish and democratic state instruct us to act decisively and uncompromisingly to eradicate racism in our midst. This message also sheds light on the danger that must be determined in this regard for the purpose of the probability test, if it be found that it should be applied to the causes for disqualification under sec. 7A of the Basic Law. In my view, the inherent danger of racist discourse derives from the fact that such discourse feeds and sets the stage for actions intended to realize the racist ideology, which in turn motivate and reinforce continued racist discourse. As Justice D. Beinisch stated in the Tibi case: “‘Racism’ in its ‘nuclear’ sense, comprises, by its very nature, a potential for danger whose probability is a real possibility” (ibid., p. 88). Indeed, racist discourse, particularly if it is systematic, significant, and prolonged, causes this societal disease to infiltrate, take root and spread. Therefore, it is necessary to send a clear, unambiguous message that inciteful racist discourse is illegitimate, particularly when expressed by a candidate for public office who shouts it from the rooftops. Such discourse must be left “outside the camp” in every civilized state, and all the more so in the Jewish state.

32.       The French-Jewish author and intellectual Albert Memmi, who was born in the Tunis ghetto in 1920, writes in the introduction to the Hebrew edition of his book Racism:

The Jewish people is always a minority, and therefore, like most of the world’s minorities, historically and socially exposed, and is therefore a very convenient target. (This is, incidentally, one of the justifications for Zionism: The need for Jews to cease to be a minority, at least in one place).

Perhaps today, things have already begun to change somewhat. The declarations of some statesmen and religious leaders […] have aroused the political conscience of the nations. All of these may cause us to believe that the hell that was the lot of the Jews in almost every place in the world will come to an end […] thanks to the existence of the State of Israel. However, we should not yet rejoice. Already at the end of the last World War, it was claimed that the horrors of the war made people allergic to racism; racist philosophies would completely perish. But our hope was too rash. Nowadays, there are people who once again dare to be racist, and yet again we see the writings on the wall that call for the expulsion of the Jews, whose citizenship again is put in question, and the stage is once more set for their humiliation. We must tirelessly return to the struggle and not stop, perhaps forever (Albert Memmi, Racism, 8 (1988) (hereinafter: Memmi).

            If, as Memmi states, we Jews are obligated to spearhead the ongoing, uncompromising struggle against racism – of which antisemitism is one of the oldest and most severe examples – we must be worthy of leading that fight, and we must expunge the dangerous disease of racism from our midst in the sovereign State of Israel.  This is a long fight that requires perseverance, and as Memmi warns: “We are all fertile ground for absorbing and germinating the seeds of racism if we let down our guard even for a moment” (ibid., p. 41).

            And now from the general to the specific.

 

The background for addressing the matters of Ben Ari and Ben Gvir

33.       The main claim against Ben Ari and Ben Gvir is, as noted, that they view themselves as the successors of Rabbi Meir Khane and of the ideology of the Kach list that he headed. As may be recalled, that list was disqualified from standing for election to the Knesset (see the second Neiman case), and other lists that presented themselves as its successors have also been barred from running for the Knesset in the past (see: the Kach case; the Movshovich case). It should also be noted that already in 1984, prior to the constitutional grounding of the causes for disqualification in sec. 7A of the Basic Law, the Court noted in the first Neiman case that the Kach list “propounds racist and anti-democratic principles that contradict the Declaration of Independence of the State of Israel”. It should also be noted that in 1994, the Israeli Government decided to declare the Kach movement, the Kahana Chai movement, and associates and derivatives of those movements, as terrorist organizations under the Prevention of Terror Ordinance, and proceedings instituted in that regard were dismissed (see: HCJ 547/98 Federman v. Government of Israel [16]; and see: AAA 8342/02 Ben Gvir v. Commissioner of Police [17]).

34.       The Tibi case examined, inter alia, the question of barring Marzel from standing for election on the Herut list after the Committee decided to reject a request for his disqualification. It was argued that he supported the ideology of the Kach movement, and the Court was willing to assume that the evidentiary foundation presented did, indeed, ground Marzel’s involvement in the activities of that movement prior to the elections. However, in dismissing the appeal, the Court majority saw fit to grant significant weight to the fact that Marzel had declared that he had changed his views, and in the words of the judgment: “Mr. Marzel himself declares that he has recanted his prior views, and that he now seeks to act only in accordance with the law. He accepts the principals of democracy. He disavows the path expressed in the broad statements of Kach. He does not support violent actions” (the Tibi case, p. 60). Against that background, the Court dismissed the appeal in the Tibi case in regard to the disqualification of Marzel, although it had reservations as to the sincerity of his declarations.

35.       Ben Ari served in the 18^th Knesset as a member of the Ihud Leumi faction, and Ben Ari and Ben Gvir ran on the Otzma LeYisrael list in the elections for the 19^th Knesset in 2013. A request to bar the list from the elections was denied by the Central Elections Committee, but the list did not meet the electoral threshold. In the list’s election campaign for the 19^th Knesset, posters were used that displayed the word “loyalty” in Arabic, and beneath it the phrase: “There are no rights without obligations”. The campaign was barred by the chair of the Elections Committee Justice E. Rubinstein, who ruled that it bore a racist message that was intended to portray the Arab community as disloyal to Israel. Prior to the elections for the 20^th Knesset in 2015, the list changed its name from to Otzma Yehudit, and ran as part of the Yahad list, led by MK Eli Yishai. Leading up to the elections, the question of Marzel’s participation in that list arose again, after the Elections Committee decided to disqualify him. In a majority decision, the Court ruled that the disqualification decision should not be approved. It was noted that while Marzel came very close to the point of disqualification from participation in the elections, nevertheless, the claims by those who requested his disqualification were largely based upon newspaper reports and information obtained from the internet of low probative value, which were met by Marzel’s denial. The Court noted that Marzel “explained a significant part of the evidence submitted in his regard, and special weight should be given to his declarations in this matter […] These explanations cast doubt upon incitement to racism being a primary objective of Marzel’s activity” (emphasis original; ibid., para. 34). Marzel, Ben Ari and Ben Gvir did not serve in the 20^th Knesset, as the Yahad list did not pass the electoral threshold.

36.       Did the Appellants succeed in presenting evidence in the matter of Ben Ari and Ben Gvir that establishes a cause for disqualification against either of them from running as candidates for the 20^th Knesset by reason of incitement to racism? Given our approach that particular care should be taken, and that ordering that a list or candidate be barred from participating in the elections should be reserved only for extreme cases, we found that the evidence presented in the matter of Ben Gvir is insufficient for establishing a cause for disqualification, as noted, even under sec. 7A(a)(1) as argued by the Appellants. As opposed to this, the majority of the Court was of the opinion that the evidence presented justifies the disqualification of Ben Ari on the grounds of incitement to racism under sec. 7A(a)(2) of Basic Law: The Knesset.

 

Ben Ari

37.       In his arguments, the Attorney General referred to a very long list of evidence, focusing upon evidence from the period since the beginning of 2017, and emphasizing statements and actions by Ben Ari over the course of the year preceding the elections. This evidence includes statements by Ben Ari, in his own voice, in various film clips, that, as the Attorney General argues, present an unambiguous, clear and persuasive picture of incitement to racism against the Arab population in its entirety. We are concerned with a very detailed evidentiary foundation that comprises some 40 items in regard to statements and actions by Ben Ari. After reviewing that evidence and examining Ben Ari’s affidavit and statements before the Elections Committee, as well as his response to the appeal, his oral arguments before us, and the supplementary pleadings that he submitted, we are of the opinion that the arguments presented on Ben Ari’s behalf do not provide an explanation that would remove his actions and statements from the scope of incitement to racism that raises a cause of disqualification under sec. 7A(A)(2) of the Basic Law.

38.       Below, we will address the main elements of the evidentiary foundation presented:

            In November 2017, Ben Ari spoke at the annual memorial ceremony for Rabbi Kahane, while wearing a sticker on his jacket lapel that read: “Rabbi Kahane was right”. In the course of his speech, Ben Ari was heard saying the following:

There are enemies, there is a Jew, there is a knife, so they slaughter. Because they are given an opportunity, they slaughter […] We’ll give them another hundred thousand dunams, and affirmative action, perhaps they will love us. In the end, yes, they love us, slaughtered […] Rabbi Kahane taught us – there is no coexistence with them. There is no coexistence with them! (emphasis added).

            Further on, Ben Ari was heard referring to Bedouin citizens, stating:

We of Otzma Yehudit came out with a plan called Immigration and Building, Emigration and Peace […] After immigration and building, we will fulfil what God said […] Cast out that slave-woman, because whoever wants money will get money, whoever wants a bus will get a bus […] We will say and initiate here what has to be done so that we will wake up in the morning to a Jewish state […] The Bedouins have to be dealt with, but in the countries of origin. Return the land of the Negev to the Jewish people (emphasis added).

            Another piece of evidence presented by the Appellants is a video that Ben Ari posted on the Facebook page “Otzma Yehudit with Michael Ben Ari” (hereinafter: the Facebook page) on May 20, 2018. In the film, Ben Ari is seen giving a speech and saying the following:

The Arabs in Haifa are in no way different from the Arabs in Gaza […] In what are they different? In that here they are enemies from within […] here they carry out a war against us within the state […] it’s called a “fifth column” […] this dog should be called by its name, they are our enemies, they want to destroy us, there are, of course, loyal Arabs, but they can be counted as something like a percent or less than a percent, to our great despair, the overwhelming majority are full partners with their brothers in Gaza […] The Arab enemy has to be told that it’s one or the other, either you are loyal to the state or you should go to Syria […] There is no coexistence with them, they want to destroy us, that is their objective, that is their goal […] This is the fifth column here (emphasis added).

            According to Ben Ari, this was said following demonstrations in Haifa in support of the residents of Gaza “against the background of the balloon terror in the south of the country”. An examination of the Facebook page on April 17, 2019, shows that the video garnered 21,000 views, hundreds of “likes”, and additional hundreds of comments and shares.

39.       In July 2018, Ben Ari posted another video on his Facebook page, in which he is heard saying the following:

Do you know that the Bedouin marry Arab women from Gaza, from Hebron, who all come here. They get national insurance, they give birth in hospitals at our expense, their children later get every benefit at our expense […] they even serve in the army! These enemies the Bedouin serve in the army, let me repeat what I am saying – the enemy Bedouin serve in the army! They are seduced by money. I know from firsthand sources, from those who serve with them – they don’t trust them for a minute. There is an agenda that if they serve in the army, they will be loyal to us. No, they are not loyal to us! (emphasis added).

            This video received some 4,800 views and many comments.

            About a month later, Ben Ari posted another video on the Facebook page “Otzma Yehudit with Michael Ben Ari”, in which he appears saying, among other things:

First, we have to change the equation that anyone who dares to speak against a Jew doesn’t live. He doesn’t live! We don’t expel him, don’t take away his citizenship. He doesn’t live! A firing squad kills him, he is done away with, the way Arabs understand. That’s their language […] Tell me racism, racist? Whoever says that they are loyal underestimates them. “What? An Arab just wants to eat, just wants to make a living” – that’s not true, […] An Arab has nationalistic ambitions, he screams them, he shouts about them, he is ready to die for them (emphasis added).

            Ben Ari explained that this was said “against the background of the conduct in regard to Gaza and the solution that should be implemented against it”. This clip also received 9,300 views and hundreds of “likes”, comments and shares.

            In another video from the same month, Ben Ari is heard saying, among other things:

Over the last hours, in Tel Aviv, in the center of Tel Aviv […] our staunchest enemy has been arriving, and that is the internal enemy, the internal enemy, the enemy that we want to ignore, the enemy we want to hide our heads in the sand and not see, the enemy of Israeli Arabs (emphasis added).

            Ben Ari explained that this was said against the background of a demonstration by Arabs and Jews against what is called the “Nation-State Law” (Basic Law: Israel – the Nation State of the Jewish People) (hereinafter: The Nation-State Law)) in which PLO flags were waved and in which there were calls for the liberation of Palestine. He further explained that he was referring to Arabs who are not loyal to the State of Israel and who want to eradicate its Jewish character.

40.       After about a month, on Sept. 16, 2018, immediately following the stabbing attack at the Gush Etzion junction in which the late Ari Fuld was murdered, Ben Ari uploaded another video clip to his Facebook page, in which he states, among other things, the following:

[…] They murder because they have work. They murder because they want to inherit this land […] If there are infiltrators, it is the Arab enemy […] You need Shlomo Neeman [head of the Gush Etzion regional council] to ask all the business owners to fire today the terrorist of tomorrow. It is your responsibility, stop employing the murderers! Don’t employ these murderers! They get money from us and also come to murder us […] They murder us whenever they have the chance. The conclusion is that there is no coexistence. Look at the Arabs! Do they coexist amongst themselves? Every day in the news, murder in Rahat, murder in Reineh, murder in Umm al Fahm, attempted murder in Lod, murder in Jaffa. First of all, when speaking of coexistence, Rabbi Kahane would always say, let’s see the Arabs coexist amongst themselves (emphasis added).

            The clip received some 7,300 views, and hundreds of “likes”, comments and shares.

            At the end of November 2018, Ben Ari referred to the Arabs of the city of Lod in another video, this time on his Twitter account, accompanied by the caption: “The Arab conqueror of Lod continues to rage even today: The State of Israel is being conquered from within, Israel needs Otzma Yehudit!” In another video clip published on his Facebook page shortly after, Ben Ari referred to the members of the Lod municipal council as the “Arab enemy”. At the end of December 2018, Ben Ari published a clip on his Facebook page titled “Now in Afula Illit, a meeting with Otzma Yehudit loyalists”. In the clip, Ben Ari is seen conversing with a group of residents and stating as follows:

They wanted to bring you a clan of enemies into your neighborhood […] The State of Israel is being conquered from within, they are determined to conquer us from within […] By means of the word equality, the enemy will destroy us […] What is happening here is happening in Dimona, is happening in Lod. Lod is already a completely conquered city. But Afula? This criminal who opened the center for the enemy in the name of equal rights […] If, with the help of God, we enter the coalition, the first thing that we will do is the complete revocation of this thing called affirmative action. Do you understand that you are second class citizens because you are not Arabs? […] Most of them are willing to give up everything as long as they slaughter us. And what I am saying is not racism because, to my regret, it is the reality (emphasis added).

            Further on in the clip, Ben Ari is heard referring to the murder of the late Sheli Dadon, which occurred in 2014, saying as follows:

Did anyone ever hold a discussion of their character? On their treasonous character? […] The moment you give here, you give him affirmative action, you give him more work, he will raise a family here. His children will also be here, his children, fewer of my children will be here, and so […] I need a work plan. I need a work plan now a work a plan. […] This is not racism, it is fact, Arabs are the most migrant people in the world, they aren’t tied to any land […] That’s why they came here. Because there is work. […] One of the first things, our first condition for any discussions about a coalition, with the help of God, that they will discuss with us, is – revoking affirmative action (emphasis added).

41.       Some two months prior to the elections for the 21^st Knesset, on Feb. 8, 2019, shortly after the murder of the late Ori Ansbacher by a Palestinian terrorist, Ben Ari uploaded another video clip to his Facebook page in which he stated, among other things, the following:

There is a murderous people here, a murderous nation. We owe the revenge, and the revenge is Otzma Yehudit […] Only the revenge of Otzma Yehudit in the Knesset […] They want to destroy us, they are looking for our neck. […] They want to slaughter us […] The revenge will come when Otzma Yehudit will be in the Knesset with twenty mandates. When we will be there, they will see that we are not playing with them like Lieberman. They will find themselves in their countries of origin, and the village they came from will become an airport. To fly them to their countries of origin (emphasis added).

            An examination of the Facebook page shows that the clip received some 20,000 views. In another video clip that Ben Ari posted the same day, he is heard saying, among other things,: “They are looking for our neck, looking for our daughters […] anyone who talks to you about coexistence is inviting the next murder […] we have to send our enemies back to where they came from […] our enemies, these murderers, we will send them to murder in Syria, in Lebanon, in Iran in Turkey” (emphasis added). This clip, which was, as noted, published close to the elections, received some 32,000 views, and hundreds of “likes”, comments and shares.

42.       The evidence presented, the main part of which we described above, indeed paints a clear, unambiguous, persuasive picture in which Ben Ari systematically inflames feelings of hatred toward the Arab public in its entirety, while continually demeaning that public. We are concerned with significant evidence that comprises disparaging expressions of extreme severity that continued over a period of some two years until very close to the elections for the 21^st Knesset, and Ben Ari is heard saying these things in his own voice. This fact is of high probative value (the second Zoabi case). Ben Ari attributes negative characteristics to practically all of the Israeli Arab public, and calls them “murderers”, a “fifth column”, “enemies”, and of “treasonous character”. We are not concerned with a “slip of the tongue” in a moment of anger, but rather with a continuous, consistent series of statements that express hatred and scorn for the Arab population in its entirety as one that appears to understand only violence, with which one cannot coexist, and which must, therefore, be expelled, and as one that receives various social benefits “at our expense”. As noted in the Appellants’ response to Ben Ari’s supplementary pleadings, these publications were not removed. Ben Ari surpassed himself in comparing the Israeli Arab citizens of Haifa to dogs, stating that “the dog should be called by its name”. The use of dehumanization and attributing animalistic traits to people is known to be one of the most degrading propaganda mechanisms employed by racist regimes in order to mark a population as “inferior” and “sub-human”, and it endangers and seriously harms the dignity of the individuals who are members of that group as human beings.

            Ben Ari’s statements, and the not insignificant exposure they receive on social media, reflect the racist political program he espouses and which he intends to realize as a member of the Knesset. Certain statements that expressly call for violence are of particular severity (see, in this regard, his statements in the video clip published in August 2018, according to which “anyone who dares to speak against a Jew doesn’t live. He doesn’t live […] A firing squad kills him, he is done away with, the way Arabs understand. That’s their language”). It is important to note that publications on the social media platforms that Ben Ari chose to use by uploading recordings in which he is heard speaking in his own voice have great influential potential, as the social networks provide candidates for the Knesset quick channels of communication  to many communities without any journalistic mediation. In this manner, the social networks have, to a significant extent, replaced the historic “town square”, and serve as a platform for exchanging views, disseminating ideas, and garnering support among broad, diverse communities. The great accessibility of social networks, as well as the quick and effective dissemination of opinions and ideas by means of the digital platforms, can serve as a very effective means for spreading racist ideas and expedite the dissemination of those ideas (see, in this regard, in general: Yotam Rosner, The Role of Social Media in the Radicalization of Young People in the West, National Security in a “Liquid” World, 131, 135-137 (Institute for National Security Studies, 2019) (Hebrew)).

43.       In addition to the specific explanations that Ben Ari gave for the above publications, he further explained that he is not a racist, and that what he said was directed only at that defined segment of the population that is “enemy”, which includes anyone who is not loyal to the state, and in his own words: “The definition of the enemy is not made on a purely ethno-national basis, but on a political one. Anyone who identifies with the political objectives of the Arab national movement identifies himself as an enemy”. According to him, he does not refer to the Arab public as a whole, and any Arab who is “loyal to Israel” has a right to be a citizen. As opposed to that, whoever “is not loyal to the State of Israel as the nation state of the Jewish people […] should find his place outside of the state”. Ben Ari further clarified that the distinguishing characteristic, according to his approach, is “the relationship to the Zionist enterprise and to the State of Israel as the state of the Jewish people”. He further argued that the quotes attributed to him were fragmented and tendentious and explained that in saying that the Arab population of Israel is not loyal, he meant that he has not met “many loyal Arabs” (emphasis added). In the hearing before us, Ben Ari’s attorney noted: “In my estimation, there is an absolute majority that is not loyal” (Transcript of the hearing, p. 22, line 14), and in this regard, Ben Ari clarified in his supplementary pleadings that his statement that there is an absolute identity between ethno-national origin and loyalty was made in opposition to a statement that he attributed to former minister Naftali Bennet according to which 99% of Israeli Arabs are loyal to the state.

            Ben Ari apologized for his statements in regard to Bedouin soldiers. He pointed out that he “apologizes for them before those loyal soldiers who may have been hurt” and explained that his intention was “unequivocally only to those sons of women who came from the areas of the Palestinian Authority and Gaza”, and that he does not think that “all of the Bedouin population is disloyal” (paras. 32-33 of his affidavit). In the hearing before us, Ben Ari even emphasized that “if it sounds as if I am against the Bedouin, God forbid. If there is loyalty, there is loyalty, and I respect and honor that (hearing transcript, p. 29, lines 16-17). Ben Ari asked to clarify that his statement of Sept. 16, 2018, following the murder of Ori Fuld, in which he called to “stop employing the murderers” as referring only to terrorists, the words do not, of course, refer to all Arabs […] [only] to the security measures that should be adopted in regard to employing Arabs from the Palestinian Authority”. In his response to the appeal, Ben Ari explained that his statements in the Afula meeting were made “against the background of the murder of a resident of my community Dadon”, and in his supplemental pleadings, Ben Ari added that even if what was said in that meeting “grate upon the ear, they do not rise to the level of a ‘critical mass’”. In his affidavit, Ben Ari emphasized that “I am not saying that all Arabs are like that [of a murderous, treasonous character], or that this character derives from ethno-national origins. But this murderous violence is characteristic of the national struggle of the Arab national movement since the beginning of the 20^th century” (para. 47 of his affidavit). In the hearing before us, Ben Ari added another reason for his statements, noting that his words in regard to the sale of apartments to Arabs in Afula should not be understood as racial discrimination, and he referred in this regard to Amendment no. 8 of 2011 to the Cooperative Societies Ordinance in the matter of the considerations that may be taken into account by an admissions committee of a residential community (hereinafter: the Admissions Committee Law). Ben Ari explained what he said after the murder of Ori Ansbacher in a supplementary notice in which he explained that he “referred to the murder, and that was its only context”. In his affidavit, he added that his words might sound inclusive in regard to people on the basis of ethno-national origin, but that his intention was “to those who, from an Arab national position, seek to murder Jews against a nationalistic background, and as part of what they see as a national struggle, and who support and identify with those acts (para. 50 of the affidavit). In the hearing before us, Ben Ari’s attorney added that “there is never any justification for harming individuals on the basis of the nationality” (Transcript, p. 15, line 6), and that Ben Ari’s statements about the Arab public were always made in the context of a specific event” (ibid., line 12).

            Lastly, Ben Ari sought to emphasize that presenting broad positions is not exclusive to him but is rather a common practice of candidates for the Knesset, and even of serving members of the Knesset.

44.       I examined Ben Ari’s arguments and explanations and I do not see them as sufficient to change my conclusion. While Ben Ari repeatedly states that he is not a racist, unfortunately, his actions and statements, which I have summarized above, are diametrically opposed to that declaration. The question I pondered was what positive weight should be afforded to the fact that Ben Ari already served as a member of the Knesset (in 2009 - 2013). This fact does, indeed, constitute a consideration in his favor, but it is of limited weight inasmuch as Ben Ari worked toward the advancement of his racist ideology even in that period, and tearing the New Testament to shreds and throwing it in the waste basket in the Knesset was just one example of that (for other actions and expressions, see paras. 79-91 of the notice of appeal). In any case, as the Attorney General emphasized in presenting his position, the evidentiary foundation from the recent past, and primarily from the year preceding the elections, shows that a “critical mass” of evidence has amassed that unambiguously, clearly, and persuasively testifies to systematic incitement to racism by Ben Ari. The summary of the case law presented above shows that the Court has attributed significance and weight to explanations and clarifications presented by the candidate, to which the decisions in the matter of Marzel testify (the opinion of President A. Barak in the Tibi case, p. 60, and that of Justice I. Englard at p. 66; the second Zoabi case, para. 34, and as opposed to that, see the dissenting opinion of Deputy President E. Rubinstein at para. 103). However, in the instant case, the explanations provided by Ben Ari are not persuasive and pale before the enormity of the racist statements that he repeated again and again in his own voice, and which he preached in public at rallies in which he participated and on social networks. Other than an apology, that was only partial, in the matter of Bedouin soldiers, Ben Ari did not apologize for his statements and did not retract them. He tried to give his words a post facto interpretation, but that, as stated, was not persuasive because it is not consistent with the meaning and natural context of what was said. Thus, for example, Ben Ari tried to explain that he does not speak about the Israeli Arab public in general but only of those who are “enemies”, but the recordings repeatedly show that the reference is to the entire Arab public, or at the very least, to its overwhelming majority – 99% of that public – as disloyal to the state. Ben Ari himself notes in one of those recordings that he has not met Arabs who are loyal to the state (see, for example, the video clip of Ben Ari from Nov. 7, 2017, from 6:30). Another explanation proposed by Ben Ari in regard to some of his statements was that they were made immediately after terrorist incidents and attacks against Israelis. The pain, the anger, and even the will for revenge aroused at such times is understandable. However, it is important to bear in mind that fear and a sense of threat have always been the fuel that fires racist ideologies, and one must, therefore, take care not to harness understandably harsh feelings that arise at times of distress and pain and exploit them to advance such ideologies. The explanations that Ben Ari presented in an attempt to equate the Admissions Committee Law – with all the clear limitations it establishes – and the things he said in regard to the sale of apartments to Arabs in Afula have no place here inasmuch as the two cannot be compared (and compare: LCA 6709/98 Attorney General v. Moledet [18]) (hereinafter: the Moledet case)).

45.       In summation, this chapter states that the Court’s approach that the causes for disqualification under sec. 7A of Basic Law: The Knesset are to be narrowly construed and exercised in the most extreme cases, was and remains the starting point for every discussion of these causes. However, we are persuaded that the broad, up-to-date evidentiary foundation presented in the instant case gives rise to a cause that disqualifies Ben Ari from standing as a candidate in the elections for the 21^st Knesset due to incitement to racism under sec. 7A(a)(2) of the Basic Law. Given this conclusion, there is no need to examine the additional cause for disqualification under sec. 7A(a)(1) of the Basic Law.

            Indeed, it is not always easy to draw the line separating racial incitement from the expression of an opinion – as severe and harsh as it may be – that is entitled to protection under the fundamental right to freedom of expression in general, and to freedom of political speech in particular. This is particularly the case when the former also concerns the right to vote and to be elected. Nevertheless, in the instant case, and given the evidentiary foundation we presented, it is absolutely clear that Ben Ari’s statements crossed the line, and thus the conclusion reached. It would be appropriate to conclude this chapter with another quote from Memmi’s book Racism:

One cannot be indulgent toward racism; one must not even let the monster in the house, especially not in a mask […] To accept the racist universe to the slightest degree is to endorse fear, injustice, and violence. It is to accept the persistence of the dark history in which we still largely live. It is to agree that the outsider will always be a possible victim (and which man is not himself an outsider relative to someone else?) […] The anti-racist struggle, difficult though it is, and always in question, is nevertheless one of the prologues to the ultimate passage from animality to humanity (ibid., p. 116).

 

Ben Gvir

46.       In the matter of Ben Gvir, the Appellants presented a line of evidence, including evidence concerning criminal proceedings against him that, in part, concerned racist publications and support for the Kach movement that was declared a terrorist organization. However, the overwhelming majority of the evidence presented concerned acts and statements form many years ago, part from as long ago as the 1990s, and only a small part concerned the last few years. After examining the arguments raised by the Appellants and those of Ben Gvir, we concluded, as noted, that the evidence presented is not sufficient to ground a cause for disqualification from standing as a candidate in the elections for the 21^st Knesset, given the rule that we addressed above in regard to the strict evidentiary threshold required to substantiate disqualification under sec. 7A of the Basic Law.

47.       The up-to-date evidence to which the Appellants and the Attorney General referred in regard to Ben Gvir should not be taken lightly. It includes statements he made in November 2017 at a memorial service for Rabbi Kahane, whose praises he also enumerated in an interview on Feb. 21, 2019. Ben Gvir made similar statements in a television interview in Nov. 2018 that he published on his Facebook page at that time. Those statements there were certainly very harsh and troubling, and there is substance to the Attorney General’s opinion that they come dangerously close to the line that would bar him from running in the Knesset elections. In this regard, it would not be superfluous to return to the words of Justice M. Elon in the second Neiman case, in 1989, in regard to the Kach list and Rabbi Kahane’s ideology:

The content of the Kach platform and the purpose of its promoters and leaders, as reflected in the material presented to us, stand in blatant contrast to the world of Judaism – its ways and perspectives, to the past of the Jewish nation and its future aspirations. They contradict absolutely the fundamental principles of human and national morality, the Declaration of Independence of the State of Israel, and the very foundations of present-day enlightened democracies. They come to transplant in the Jewish State notions and deeds of the most decadent of nations. This phenomenon should cause grave concern among the people who dwell in Zion. This court is charged with the preservation of the law and its interpretation, and the duty of inculcating the values of Judaism and civilization, of the dignity of man and the equality of all who are created in the divine image, rests primarily upon those whom the legislature and the executive branch have chosen for the task. When, however, such a seriously dangerous phenomenon is brought to our attention, we may not refrain from sounding the alarm against the ruinous effects of its possible spread upon the character, image, and future of the Jewish State. The remedy lies, in the first place, in a reassessment of the ways of educators and pupils alike, in all walks of our society (ibid., p. 302).

            These trenchant remarks are applicable here, as well. However, Ben Gvir, who was admitted to the bar in 2012, took pains to emphasize and explain that while he is in favor of “fighting against the enemies and against any who seek to erase the state, harm its Jewish character, and destroy it (whether such actor is Jewish or whether Arab)”, he “opposes acting in any violent or unlawful manner” (para. 43 of Ben Gvir’s affidavit). He further noted that over the last years, he has changed his ways and he acts by legal means and initiates legal proceedings where he deems appropriate. These explanations bear weight and should be granted significance, and this, together with the current evidentiary foundation presented in his matter, which, as noted, does not rise to the level of a “critical mass” under the strict criteria established in this regard in the case law, led us to the conclusion that the appeal in the matter of Ben Gvir, on both heads, should be dismissed.

 

EA 1876/19 Ra’am-Balad List v. Central Elections Committee for the 21^st Knesset

48.       The Ra’am-Balad list is composed of two parties – Ra’am and Balad – and two requests for its disqualification were filed by the Likud and MK David Biton, and by Ben Ari and Ben Gvir. The disqualification requests were based upon the cause in sec. 7A(a)(1) of the Basic Law – negation of the existence of the State of Israel as a Jewish state, and sec. 7A(a)(3) of the Basic Law – support for an armed struggle by an enemy state or of a terrorist organization against the State of Israel. The requesting parties focused primarily on the activities of members of Balad, and it was argued that they oppose the Jewish people’s right to self-determination in the State of Israel and act to negate the core characteristics of Israel as a Jewish state. It was further argued that members of the list support the Hezbollah and Hamas terrorist organizations and violent acts against the police and IDF soldiers. The Elections Committee decided by a majority of 17 for and 10 against to disqualify the Ra’am-Balad list from participating in the elections for the 21^st Knesset, and thus the current appeal.

 

Arguments of the Parties

49.       Ra’am-Balad argued that the Elections Committee’s decision should be annulled, and emphasized that most of the evidence presented in its regard was already adjudged and examined in prior proceedings against the Balad list or its members, including the evidence concerning their support for the idea of “a state of all its citizens”, and the Court held that the evidence did not substantiate a cause for disqualification. It was further argued that the Committee’s decision leads to a problematic result that also disqualifies the members of the Ra’am party on the list from standing for election even though no significant evidence was produced against them that would justify their disqualification. According to Ra’am-Balad, the Committee reached its decision without any material debate, and it ignored the decisions of this Court and the opinion of the Attorney General; the evidence against it does not relate to actions or activity that substantiate a cause for disqualification; and the evidentiary foundation rests upon articles form the internet of low probative weight and whose content was denied by the members of the list. Ra’am-Balad further argued that due to its political composition, the Elections Committee is not authorized to rule upon the causes for disqualification under sec. 7A of the Basic Law, and that the legal arrangement that grants it that authority is disproportionate and infringes the principle of equality of the elections as established in sec. 4 of the Basic Law, and the right to vote and to be elected.

50.       The Attorney General was of the opinion that the appeal of Ra’am-Balad should be granted and noted that the disqualification requests were indeed largely founded upon evidence from prior to the elections for the 20^th Knesset, and part of it had already been examined in prior proceedings before this Court. Whereas, it is argued, the new evidence submitted relies largely upon articles form the internet that were denied by the members of the list and that are of low probative value. It was further emphasized that most of the evidence pertains to persons who are no longer on the list, among them: Basel Ghattas (hereinafter: Ghattas) and Said Naffaa, or who are in a unrealistic slot on the list, like Hanin Zoabi and Jamal Zahalka (hereinafter: Zahalka), and are not relevant to the members of the list and its new candidates who are in realistic slots. In all that relates to the cause of support for armed struggle of a terrorist organization, the Attorney General was of the opinion that significant weight should be accorded to the affidavits submitted by the representatives of the list which note that they reject violence and that they never called for its use. As for the cause of negation of the existence of the State of Israel as a Jewish state, the Attorney General noted that the consistent position of the case law of this Court in regard to Balad and its members is that there is no cause for disqualifying them from participating in the election for the claims have been raised once again in this proceeding. However, the Attorney General, without deciding the issue, explained that were the Balad party running independently for the 21^st Knesset, there would be reason to carefully consider its disqualification in view of the Basic Law: A State of all its Citizens Bill submitted to the 20^th Knesset by members of Knesset from the Balad party, and due to the content of that bill. But the Attorney General added that since the requests refer to the disqualification of the Ra’am-Balad list, and because the law does not allow for disqualifying half of a list, there is some difficulty in disqualifying the entire list due to the actions of members of the Balad list, who for the most part are not, as noted, candidates in realistic slots on the list, while no significant arguments were raised in regard to the Ra’am party and its members. On the constitutional level, in regard to the matter of the Elections Committee’s authority to address the causes for disqualification under sec. 7A of the Basic Law, the Attorney General argued, inter alia, that given the time constraints established in the Elections Law for deciding upon an appeal, the issues should not be taken up in the framework of the current proceedings.

51.       Respondents 2-3, who submitted the requests for disqualification, relied upon the decision of the Elections Committee and argued for dismissal of the appeal. In their view, the fact that the Ra’am-Balad list includes new candidates does not alter the fact that the ideology of the members of the Balad list negates the character of the State of Israel as a Jewish state and the fact that members of the party support terrorist groups like Hezbollah and Hamas. The Knesset, which was joined as a Respondent to the appeal due to the constitutional arguments, was of the opinion that these arguments should be dismissed. It emphasized that the claim of lack of authority was not raised before the Elections Committee, that it is being raised long after the said authority was bestowed upon the Committee by law, and like the Attorney General, the Knesset added that the elections proceedings are not appropriate for examining this issue.

 

Negation of the Existence of the State of Israel as a Jewish State

52.       The starting point for examining the evidentiary foundations presented by the Plaintiffs in regard to the disqualification of Ra’am-Balad on the cause of negation of the existence of the State of Israel as a Jewish state is grounded in the criteria established in the case law, which we surveyed at length above. These criteria were addressed and even applied in the past in regard to the Balad list and its platform (see the Tibi case and the Balad case), and those cases addressed, inter alia, the question whether a party that calls for the realization of the principle of “a state of all its citizens” is disqualified from standing for election to the Knesset. In the Tibi case, the Court answered in the negative, and held that calling for the realization of that principle does not necessarily imply the negation of the State of Israel as a Jewish state. The Court held that as long as that call is intended to guarantee equality among citizens, it should not be interpreted to be a call that negates the existence of the State of Israel as a Jewish state. As opposed to that, “if the purpose of Israel being a ‘state of all its citizens’ is intended to mean more than that, and it seeks to undermine the rationale for the creation of the state and its character as the State of Israel as the state of the Jewish people, then that undercuts the nuclear, minimal characteristics that characterize the State of Israel as a Jewish State” (the Tibi case, pp. 22-23, 41).

53.       In the Tibi case, the Court concluded that, despite the fact that Balad’s platform expressly called for realizing the principle of “a state of all its citizens”, and despite the additional evidence presented in open court and in camera, taken in its entirety, what was presented did not ground a “critical mass” of persuasive, clear and unambiguous evidence that would justify the disqualification of Balad for the cause argued, nor the disqualification of Bishara – then head of the list – whose disqualification was requested in that same proceeding. It would not be superfluous to note that most of the evidence presented in that matter in regard to Balad concerned actions and statements by Bishara. It was argued in regard to Bishara that, inter alia, in various events and party conferences he expressed himself in a manner that reflected a view according to which Jews do not have a right to self-determination. It was further argued that Bishara supported the approach that recognized the right of return of Arabs to Israel and a struggle against Zionism, and that he even tabled a bill for the abolition of the status of various Zionist institutions.

54.       After examining all of that evidence, the Court concluded in the Tibi case that even though Bishara’s objectives are a dominant objective of his activity and not merely a theoretical concept but rather an objective with political potential that he had put into practice, his actions did not negate the minimal, nuclear definition of the State of Israel as a Jewish state. It was held that the Court was not presented with persuasive, clear and unambiguous evidence against Bishara in regard to the cause for disqualification under sec. 7A(a)(1) of the Basic Law, and consequently, not against the Balad list. That was so inasmuch as Bishara recognized the right of every Jew to immigrate to Israel and did not argue that the Law of Return, 5710-1950 (hereinafter: The Law of Return) should be revoked, did not deny the centrality of Hebrew as the language of the state, along with Arabic as an official language, and did not oppose Israel’s holidays and symbols, as long as the cultural and religious rights of the Arab minority are recognized.

55.       As noted, the Tibi case concerned the elections for the 16^th Knesset, and some eight years later, in the Balad case, the Court addressed disqualification proceedings filed against the Balad party in anticipation of the elections for the 18^th Knesset. That matter concerned the decisions of the Elections Committee to disqualify the Balad list, as well as the Ra’am-Ta’al list that also sought to contend in those elections. The causes for which the Elections Committee decided to disqualify the Balad list were, as in the present case, the causes under secs. 7A(a)(1) and (3) of the Basic Law. At that point, Bishara no longer headed the list. He had fled the country, and it was claimed that the reason was that a criminal investigation was being conducted against him for suspected involvement in security offenses (the Balad case, para. 9). Inter alia, the evidence presented in that matter to ground the cause of negation of the existence of the State of Israel as a Jewish state included Balad’s platform, which was published on its internet site, and an article by Zahalka, who was then the party leader, which described the party’s vision as striving for a State of Israel as “a state of all its citizens”. In addition, public statements of party members made in various situations, as well as articles from which, it was argued, one could discern an expression of support of the Balad members for its founder Bishara even after his flight from Israel, were presented. The Court granted Balad’s appeal and held that there was no cause for disqualification from contending in the elections for the 18^th Knesset. The Court’s decision rested, inter alia, upon the opinion of the Attorney General at the time, who noted that the evidence presented against Balad, taken in its entirety, was inferior to the entirety of the evidence presented against that party in the Tibi case. The Court held:

After examining all of the evidence presented to us, and bearing in mind the criteria and principles outlined in the matter of Balad [the Tibi case], the entirety of the evidence presented to this Court in that matter and its concrete findings there in regard to them, we did not find that the disqualification requests that are the subject of this appeal in regard to Balad rest upon a sufficient evidentiary foundation to give rise to a cause for disqualifying the list from contending in the elections for the Israeli Knesset (ibid., para. 22).

            This conclusion reached by the Court in the Balad case concerns the two causes for disqualification advanced there. We will further address the additional cause under sec. 7A(a)(3) below.

56.       Another disqualification proceeding concerning the members of the Balad party was addressed in 2012 in the first Zoabi case, which examined the issue of the disqualification of Zoabi from standing for election for the 19^th Knesset on the Balad list. In that proceeding, the Court examined the evidence regarding Zoabi’s support for the principle of “a state of all its citizens”, and was of the opinion that the evidence presented no materially new or different grounds from what had been presented in the Tibi case and the Balad case that would justify a different conclusion. The Court arrived at a similar result some three years later in the second Zoabi case. In that matter, the Court examined, inter alia, whether statements in which Zoabi was heard saying “there was no justification for the establishing of the State of Israel from the start. Now that there are generations of Jews who were born in it, I want to live with them but not in a Jewish and racist state”. The Court also examined an article that reported on a demonstration in which Zoabi participate, entitled “Demonstration against the Crimes of the Occupation”, and a recording in which Zoabi is heard shouting insults at the police. The Court held that there were no grounds for disqualifying Zoabi’s candidacy in the elections. That was so because the desire for the establishment of a state of all its citizens and “striving for an end to the occupation does not necessarily mean a negation of the Jewish foundations of the State of Israel.”

57.       The current proceeding, in which the Ra’am-Balad list is appealing its disqualification by the Elections Committee from contending in the elections for the 21^st Knesset, is another link in the chain of similar proceedings on the same matter. In all that concerns the cause for disqualification under sec. 7A(a)(1) of the Basic Law, the evidence presented by the petitioners for disqualification includes various statement by members of Balad form the past and present, among them a quote from an interview conducted by Dr. Mtanes Shehadeh, chair of the Balad list, and number two on the Ra’am-Balad list (hereinafter: Shehadeh), in which he says, among other things, that Bishara was “an important activist in Balad’s leadership at the time, and contributed greatly to political discourse […] in Israel”, and is later quoted in that interview as saying that “the flag and national anthem do not represent us”. A report from the YNET website was also presented according to which MK Talab Abu Arar, who is a member of the list, and others met with the president of Turkey. Additional evidence presented concerns an interview with the former general secretary of Balad in which he called upon Israeli Arabs not to vote in the Knesset elections and to act for the realization of the principle of “a state of all its citizens”, as well as evidence concerning past activities of members of Balad, including statements by Zoabi from 2009 and past activities of Bishara.

            This evidence is not materially different from the evidence presented in the previous proceedings that we surveyed, which concerned proceedings for the disqualification of Balad and members of its list, as far as the cause of negation of the State of Israel as a Jewish state is concerned. Moreover, not only has most of the evidence presented in this proceeding been examined in previous proceedings and found insufficient in accordance with the criteria outlined for the said cause, but as noted, a not insignificant part of that evidence concerns persons who are no longer candidates on the Ra’am-Balad list for the elections for the 21^st Knesset, or are not candidates in realistic slots on that list. That being the case, we cannot accept the argument that the Ra’am-Balad list should be disqualified from running in the elections for the 21^st Knesset due to actions and statements attributed to Zoabi when she herself was not disqualified at the time in the first Zoabi case and the second Zoabi case for the same actions and statements, especially when she is located in the 118^th slot on the current list. The argument in regard to ongoing connections of some kind or another between members of the list and Bishara was argued in a general manner and does not suffice for changing the conclusion as to the insufficiency of the evidence presented. As for the majority of the candidates on the Ra’am-Balad list for the 21^st Knesset who hold realistic slots, with the exception of Shehadeh, no evidence at all was presented to ground the cause for disqualification, and as explained above, the evidence presented in regard to Shehadeh is based upon quotes from media interviews and reports on various internet websites whose probatory weight has already been held to be low (the second Zoabi case, para. 34), and Shehadeh has declared that his words were presented in a “distorted, misleading manner, and was accompanied by incorrect analysis” (para. 9 of the affidavit submitted by Shehadeh to the Elections Committee).

58.       The primary up-to-date evidence presented to us in this proceeding in regard to the cause for disqualification under sec. 7A(a)(1) of the Basic Law is the Basic Law: A State of all its Citizens Bill, which members of Knesset from the Balad party sought to lay on the table in the 20^th Knesset. At the end of the day, that bill was not presented due to a decision by the Knesset presidium of June 4, 2018 not to approve its introduction, based upon the opinion of the Knesset’s legal advisor. A petition filed in this regard was rendered moot and dismissed in limine when it was decided to dissolve the 20^th Knesset (HCJ 4552/18 Zahalka v. Speaker of the Knesset [19]). The purpose clause of the bill established that it was intended to ground “the principle of the equal citizenship of every citizen, while recognizing the existence and the rights of the two national groups, Jewish and Arab, living within the borders of the state that are recognized by international law” in a Basic Law. The bill also redrafted the conditions for obtaining Israeli citizenship, such that obtaining citizenship by virtue of the principle of return would be annulled (see sec. 5 of the opinion of the Legal Advisor of the Knesset of June 3, 2018). In addition, new state symbols and a new anthem should be established in accordance with the principles set forth in the bill (on the significance of this provision as negating the principle according to which the “primary symbols” of the state should reflect the national rebirth of the Jewish people, see sec. 5 of the opinion of the Legal Advisor of the Knesset, and see what was stated in this regard in sec. 6 of the bill in regard to the status of the Hebrew language as the primary language of the state). If that were not enough, the petition filed by the members of Bald in the 20^th Knesset against the decision of the presidium to prevent laying the bill on the Knesset table explicitly stated that the said bill accorded with Balad’s party platform.

            It would seem undeniable that the said bill, in all its parts, expresses a negation of the most minimal, nuclear characteristics of the State of Israel as a Jewish state as the Court explained in the Tibi case. The fact that the step taken by the members of Balad in this regard was democratic – tabling a bill – does not lead to a different conclusion. This was indeed a significant action by the members of Knesset representing Balad in the 20^th Knesset attempting to realize – by means of a legislative bill – a political program and worldview that negates the existence of the State of Israel as a Jewish state. It would appear that Ra’am-Balad was aware of the significance of this evidence, but argued that it should not be given decisive weight in the current proceeding, inter alia, given the fact that it is only one piece of evidence (or at most two, if the petition constitutes a separate piece of evidence in this regard), and given the background for submitting the bill and that it was submitted in response to the legislative proceedings on the Nation State Law. These arguments attempt to minimize the significant weight of this evidence, and I agree with the position  of the Attorney General that had Balad run as an independent list comprising members of Knesset who had served in the 20^th Knesset and who presented the bill, and who now sought to stand for re-election to the 21^st Knesset, there would be grounds for seriously considering whether these two pieces of evidence show that Balad had crossed the divide delineated in the Tibi case that separates between espousing the principle of “a state of all its citizens” in order to achieve equality and seeking to negate the minimal, nuclear characteristics of the State of Israel as a Jewish state. If we were standing at that junction, we would also likely be required to consider the issue of the applicability of the probability test in applying the cause for disqualification under sec. 7A(a)(1) of the Basic Law, which was left for further consideration in the Tibi case and in the ensuing decisions. However, the list whose disqualification was requested is a joint list of Ra’am-Balad and we agree with the opinion of the Attorney General that his fact is significant for examining the causes for disqualification. In addition, it must be borne in mind in regard to the representatives of Balad on the list that none of those placed in realistic slots were among those who submitted the bill on Balad’s behalf. Moreover, in the affidavit he submitted to the Elections Committee, Shehadeh declared that he himself and all of Balad’s candidates for Knesset are committed to the principle of “a state of all its citizens” that is presented in the party’s platform as examined and approved in the Tibi case, the Balad case, and in the first and second Zoabi case (para. 2 of the affidavit). Given all of the above, and given the strict criteria outlined in the case law for the disqualification of a list from standing for election to the Knesset, we have concluded that there are no grounds for disqualifying the Ra’am-Balad list on the cause of negation of the existence of the State of Israel as a Jewish state.

 

Support for armed struggle by a hostile state or a terrorist organization against the State of Israel

59.       The Election Committee’s decision that “the Ra’am-Balad list is barred from participating in the elections for the 21^st Knesset” does not state whether the list’s disqualification is based upon both of the two causes in secs. 1A(a)1 and (3) of the Basic Law or only upon one of them. In the future, even if the Committee does not state the reasons for its decision, it may be appropriate that it at least note what cause grounded its decision on disqualification. In any event, for the purposes of this appeal, I will assume, as did the parties, that the disqualification rested upon both causes.

            The prevailing rule established that in order to prove that a list or a candidate seeking to stand for election supports armed struggle by an enemy state or a terrorist group, it must be shown that it is the primary objective of the list and that it actually works toward realizing it. In all of the past proceedings in the matter of both Balad and Ra’am, it was held that the evidence presented in this regard does not amount to a “critical mass” that would justify disqualifying either of the lists or any of candidates on those lists on the basis of the cause grounded in sec. 7A(a)(3) of the Basic law (EA 2600/99 Erlich v. Chair of the Central Elections Committee [20] (hereinafter: the Erlich case); the Tibi case; the first Zoabi case; the second Zoabi case). Those holdings bear consequences for the matter before us inasmuch as the evidence presented to ground the cause of support for armed struggle is immeasurably less than that presented in the above cases. The Petitioners for disqualification primarily based their arguments upon pictures of Shehadeh visiting a former security prisoner and upon quotes from an interview in which it is alleged that he refused to refer to Hamas as a terrorist organization and added that “any struggle against the occupation is a legitimate struggle”, and that he “is for a struggle against the occupation. People have a right to fight against the occupation. If there are people who are oppressed, they have a right to fight”. In addition, an interview with MK Abd Al Hakeem Haj Yahya, who holds the second slot in the Ra’am party, was presented in which he referred to an attack on the Temple Mount in July 2017 in which Israeli police were murdered. According to the petitioners for disqualification, other statements by members of the list in 2009 and 2011 demonstrate a support for terrorism. The petitioners for disqualification further added the fact that former Knesset members of Balad met with the families of terrorists who were killed while carrying out terrorist attacks; Zoabi’s participation in the “Mavi Marmara” flotilla; the meeting held by former Balad Knesset members with Bishara in 2014; and the conviction of former Balad Knesset member Ghattas for security offenses.

60.       We reviewed the above evidence, and we are not of the opinion that it constitutes a body of persuasive, clear and unambiguous evidence that shows that support for an armed struggle by a terrorist organization is a central, dominant purpose of the Ra’am-Balad list or of any of the parties that compose it. In addition, we do not think that evidence was presented that meets the evidentiary threshold for proving that this list acts for the realization of such an armed struggle in a real and consistent manner. This is an a fortiori conclusion given that the evidence presented in the prior proceedings addressed by this Court was far more significant than that presented before us, and it was nevertheless held that it was insufficient to ground a cause for disqualification under sec. 7A(a)(3) of the Basic Law. Moreover, a significant part of the evidence presented to us refers to persons who do not appear on the Ra’am-Balad list for the 21^st Knesset, and some of it was already examined in the previously noted cases. The petitioners for disqualification presented various statements by Shehadeh from which one might infer support for violent activity, but that is not the only possible interpretation and the doubt acts to the benefit of the conclusion that would permit the list to participate in the elections (the second Zoabi case, para. 73). In addition, weight should be given in this regard to the fact that Shehadeh made it explicitly clear in his affidavit that he does not support violent activity and that Balad’s approach is “democratic and employs legal means. We have never called for the use of violence, and none of the candidates on our current list have ever been convicted of any criminal offence”. It was further noted that statements expressing opposition to the Israeli policy in Judea and Samaria were examined by this Court in the past, and it was held that they do not, in and of themselves, give rise to a cause for disqualification (the second Zoabi case, para. 67).

61.       In conclusion, for the reasons stated above, I was of the opinion that we should grant the appeal in EA 1876/19, that the disqualification decision by the Elections Committee should be overturned, and we should order that the Ra’am-Balad list is not barred from participating in the elections for the 21^st Knesset. I did not find reason to address the arguments raised by the Ra’am-Balad list in regard to the authority of the Elections Committee to rule upon the causes for disqualification. The conclusion that we reached in this appeal renders those arguments moot, but in my view, the fact that those arguments were never raised before the Elections Committee suffices to dismiss them in limine.

 

EDA 1806/19 Lieberman v. Cassif

62.       At the request of the Yisrael Beiteinu faction and Knesset members Avigdor Lieberman and Oded Forer, the Elections Committee decided to disqualify Cassif from participating in the elections for the 21^st Knesset as a candidate on the Ra’am-Balad list. The Committee presented that decision for the Court’s approval in accordance with sec. 63A(b) of the Elections Law and sec. 7A(b) of Basic Law: The Knesset.

 

Arguments of the Parties

63.       The request for Cassif’s disqualification rests upon two causes: negation of the existence of the State of Israel as a Jewish and democratic state under sec. 7A(a)(1) of Basic Law: The Knesset, and support for armed struggle by a hostile state or a terrorist organization against the State of Israel under sec. 7A(a)(3) of the Basic Law. The evidence adduced in support of the request consisted primarily of four publications and newspaper articles – mostly from the internet – that show, according to those requesting disqualification, that in his statements, Cassif rejects the Jewish character of the State of Israel and calls for the changing of the state’s symbols and anthem, and for revoking the Law of Return. It is also argued that the evidence presented shows that Cassif supports the armed struggle of the Hamas terrorist organization against the state. This, inter alia, because he compared senior government leaders to Nazi war criminals, and because other statements testify, in their opinion, that Cassif believes that attacking soldiers does not constitute terrorism and that Israel should be fought because of its serious crimes against the Palestinian population.

64.       Cassif argued on his behalf that the evidence presented by those requesting the disqualification does not justify his disqualification from running in the Knesset elections. That is particularly so given that the request for disqualification is based, so he argues, upon distorted and tendentious quotes and relies primarily upon one interview with him in which he primarily presented academic ideas and not his political philosophy. As for the arguments that portray him as rejecting the Jewish character of the State of Israel, Cassif emphasized that he recognizes the right of the Jewish people to self-determination alongside an independent Palestinian state, while ensuring full equal rights to all residents of Israel. As for the arguments portraying him as supporting the armed struggle of Hamas against Israel, Cassif claimed that the various comparisons that he made between the State of Israel and Nazi Germany are not relevant to grounding a cause for disqualification, and that he opposes all forms of violence against any person. Similar to the arguments raised by the Ra’am-Balad list, Cassif also raised constitutional arguments in regard to the authority of the Elections Committee to examine and rule upon the disqualification of lists and candidates under the causes grounded in sec. 7A of the Basic Law, and I will already state that for the reasons mentioned in the previous chapter concerning the appeal of Ra’am-Balad, I have not found it necessary to address these arguments in the approval proceedings in regard to Cassif.

65.       The Attorney General was of the opinion that there is no cause for barring Cassif from running in the elections for the 21^st Knesset because no “critical evidentiary mass” was presented that would justify it, noting that the evidentiary grounds adduced in support of disqualification was meager in both amount and quality.

 

Negation of the Existence of the State of Israel as a Jewish State

66.       The evidence in the matter of Cassif on this cause relies upon two newspaper publications. The first is an article on the internet site of Makor Rishon from Feb. 7, 2019, according to which Cassif stated in an interview some two years earlier on the subject of the evacuation of Israeli settlements in Judea and Samaria that he viewed this as a first step towards a Palestinian state, and that the State of Israel cannot be and must not be a Jewish state. Cassif expressly refutes these words attributed to him (para. 10 of the affidavit submitted by Cassif to the Elections Committee). As already noted, the probative weight that can be ascribed to such articles, and all the more so to “second hand” articles is low.

67.       The second and more significant piece of evidence presented by those requesting Cassif’s disqualification is an interview with Cassif in the Ha’aretz newspaper in February 2019. According to the petitioners for disqualification, certain statements by Cassif in that interview can be understood as a call for the negation of some of the core characteristics of the State of Israel as a Jewish state. Thus, for example, in response to the interviewer’s question about the character of the Israeli public space, Cassif said: “The public space has to change, to belong to all the residents of the state. I disagree with the concept of a Jewish public space”, adding that this would be expressed “for example, by changing the symbols, changing the anthem […]”. Cassif was also asked in that interview whether he supported the revocation of the Law of Return and answered “Yes. Absolutely”. As for the question of the Palestinian right of return to Israel, he replied: “There is no comparison. There is no symmetry here at all […]”. These worrying statements, which Cassif did not deny, certainly bear significant weight in examining the cause for disqualification in his regard under sec. 7A(a)(1) of the Basic Law. However, we are concerned with a newspaper interview and a single statement made in it, and I therefore agree with the Attorney General’s view that this piece of evidence alone is not sufficient to meet the strict criteria established by the case law for disqualifying a candidate from standing for election to the Knesset. Indeed, as presented in detail above, in order to ground a cause for disqualification, it is necessary to present statements that unambiguously, clearly and persuasively testify to the negation of the core characteristics of the State of Israel as a Jewish state. One must also show that this is the dominant purpose motivating the candidate’s activity and that he vigorously and consistently acts for its realization as part of a concrete political program. To this we should add that in his statements before the Elections Committee and before this Court, Cassif noted that he sees himself as obligated to the platform of the Hadash party, whose representatives have served in the Knesset for many years, and stated in the hearing before the Elections Committee: “The party of which I am a member and which I represent, […] made it its motto and has always said that we view the State of Israel as a state in which the Jewish people in the land is entitled to define itself. I do not deny that, I have never denied that, and I have no intention of denying that” (Transcript 10/21, p. 37).

 

Support for armed struggle by a hostile state or a terrorist organization against the State of Israel

68.       Has it been shown, as the petitioners for disqualification claim, that Cassif supports armed struggle by the Hamas terror organization against the State of Israel? A large part of the disqualification request in this regard rests upon statements attributed to Cassif that imply a comparison between the State of Israel and senior members of the government of Nazi Germany and Nazi war criminals. Thus, for example, in the article on the Makor Rishon website mentioned above, it was claimed that “Cassif called Lieberman ‘a descendant of Adolph’, and explained: ‘A conceptual descendent, not an actual one”, and called former Justice Minister Ayelet Shaked “neo-Nazi scum”. In another article on the website of Channel 20 from March 2016, a Facebook post by Cassif was quoted in which he wrote about the Israeli government, among other things, that “this is a fascist government par excellence, with real Nazi motives […] and at its head, above all others: an incompetent scoundrel who has destroyed every good thing there ever was here […] an outstanding student of Göring’s doctrine”. In another article published on the Channel 20 website in April 2018, there was a recording of Cassif from a class that he gave in which he is heard saying that “in the Israeli discourse created by the current government, it is legitimate to kill Arabs. This is how one slides into the abyss of what happened in Germany 80 years ago”.

69.       Those statements, which Cassif did not deny, are very harsh, and the evident comparison between the State of Israel and government ministers to Nazi Germany is outrageous and were better never said, and having been said, I reject them in the most severe terms. The weak explanations provided by Cassif, according to which the statements were only made as metaphors in order to arouse critical public debate and to warn against dangerous deterioration, do not blunt their severity. Cassif also took the trouble to explain that in his publicist writings he emphasized that “any comparison between the Nazi annihilation and Israeli policy in the territories would make a mockery of the Holocaust”, of which it may be said that he did not practice as he preached. However, we must admit that as outrageous and enraging as these statements may be, they do not ground a cause of support for armed struggle by a hostile state or a terrorist organization against the State of Israel, and they cannot, in and of themselves, lead to the disqualification of his candidacy in the elections (and compare: the Kach case, p. 3). In any case, Cassif made it clear that he does not intend to repeat such things as an elected representative (para. 13 of the affidavit submitted by Cassif to the Elections Committee), and it is to be hoped that he will act accordingly.

70.       The additional evidence presented in support of Cassif’s disqualification on the cause of support for the armed struggle of Hamas against Israel also does ground a cause for his disqualification. In this regard, the plaintiffs directed our attention, inter alia, to a post by Cassif that was mentioned earlier, which, they argue, shows that he supports a violent struggle against the fascism and racism that have, in his opinion, spread in Israeli society. They also referred to an article on the website of Channel 20, also mentioned above, that includes a recording of Cassif from 2018 in which he is heard saying that “Hamas is a political party”. Lastly, the plaintiffs refer to Cassif’s statements in the interview in Ha’aretz in which he stated:

Cassif: “Harming soldiers is not terrorism. Even in Netanyahu’s book on terrorism, he expressly defines harming soldiers or members of the security forces as guerilla warfare. This is absolutely legitimate according to every moral criterion, and incidentally, in international law as well. Nevertheless, I do not say that this is something wonderful, delighting, or desirable […] Wherever there was a struggle for liberation from oppression there are national heroes who, in 90% of the cases, did things that were, in part, terrible. Nelson Mandela, who is now regarded as a hero, a Nobel Peace Prize laureate, was a terrorist according to the accepted definition […]”.

Interviewer: “In other words, the Hamas commanders today, who initiate actions against soldiers will be heroes of the Palestinian state that will be established?”

Cassif: “Certainly”.

Cassif asked to explain what he said, and told the Elections Committee and the Court that he opposes the use of violence against any person. He did not deny his opposition to the Israeli policy in Judea and Samaria and said that in his vision for the future he sees an end of the military regime there and that his activity is intended, among other things, to change the situation of the Palestinian people in Gaza and in general. However, as already noted, expressing this opinion alone does not give rise to a cause for disqualification (see para. 56), and Cassif declared unambiguously that he does not support opposition by means of armed struggle, but rather political, non-violent opposition (compare: the Tibi case, p. 50; the second Zoabi case, para. 71), and in his words: “I never supported violence, I always expressed opposition to violence, I belong to a party that has always rejected violence, this was also expressly stated in the interviews with me and in every other framework […] I rejected, and I reject, and I will reject, and I never even hinted at support for armed struggle or violent struggle at all” (Transcript 10/21, p. 34). Cassif also expressed a similar position in that interview in Ha’aretz that was presented by the plaintiffs, a part of which was quoted above, in stating: “We have always opposed harming innocent civilians. Always. In all of our demonstrations, one of our leading slogans was: In Gaza and Sderot, children want to live. With all of my criticism of the settlers, going into a house to slaughter children, as in the case of the Fogel family, is something that is intolerable. You have to be a human being and reject this”.

As for Cassif’s statement in regard to harming soldiers, we are concerned with a severe, enraging statement that could be interpreted as legitimizing the harming of IDF soldiers by the Hamas terror organization. While Cassif tried to create a distinction in this regard between his theoretical, academic views and his political views, in my view, it is an artificial and unpersuasive distinction that is hard to accept. Nevertheless, at the end of the day, the evidentiary foundation presented by the plaintiffs relies upon those aforementioned publications, and I agree with the position of the Attorney General that this evidentiary foundation is meager and insufficient to ground the cause for disqualification under sec. 7A(a)(3) of the Basic Law in accordance with the criteria set out in the case law, which I discussed above.

 

EA 1867/19 Ben Ari v. Hadash-Ta’al List

71.       The request to disqualify the Hadash-Ta’al list from standing for election to the 21^st Knesset was filed by Ben Ari and Ben Gvir upon two causes: negation of the existence of the State of Israel as a Jewish state under sec. 7A(a)(1) of the Basic Law, and support for armed struggle by a hostile state or a terrorist organization against the State of Israel under sec. 7A(a)(3) of the Basic Law. The Elections Committee decided by a majority of 15 for and 12 against to dismiss the request, and thus the present appeal.

 

Arguments of the Parties

72.       The appellants who seek the disqualification, and a few members of the Elections Committee who joined them as appellants, argued that the statements and actions of members of the list are intended to negate the character of the State of Israel as a Jewish state, and that its members support the Hezbollah and Hamas terror organizations while legitimizing harming Israeli citizens residing in the Judea and Samaria area and IDF soldiers.

73.       For its part, the Hadash-Ta’al list relied upon the decision of the Elections Committee and argued that the requesters of disqualification did not present an appropriate evidentiary foundation that could ground the claimed causes for disqualification. It was explained that the request was partly based upon old evidence that had been examined by the Elections Committee in previous elections, and that many of the statements attributed to members of the list were distorted and presented in a tendentious manner. It was further noted that most of the evidence was based upon reports taken from internet sites and newspaper clippings of low probative value, and that part are not even relevant to grounding the causes for disqualification.

74.       The Attorney General was of the opinion that the entirety of the evidence presented in regard to that request does not justify its acceptance inasmuch as it did not amount to the “critical evidentiary mass” required for disqualifying a list from participating in the elections for the Knesset. This is particularly so given that the evidentiary material presented in the matter of Hadash-Ta’al is significantly more limited than that presented in previous proceedings in which the said causes for disqualification were addressed. The Attorney General also added that the request was based largely on newspaper reports and parts of speeches that are of low probative value, and in particular, given the fact that we are not concerned with up-to-date evidence, and that part relates to the period preceding the elections for the 20^th Knesset.

75.       The appellants based their argument in regard to the cause of disqualification concerning the negation of the existence of the State of Israel as a Jewish state on a few statements by members of the list that are insufficient– both quantitatively and qualitatively – for meeting the necessary evidentiary threshold to ground the argument that Hadash-Ta’al negates the core characteristics of the State of Israel as a Jewish state. The primary piece of evidence presented by the appellants in this regard was an interview with Knesset member Tibi in the Ha’aretz newspaper in March 2017, in which he was asked to provide a hypothetical description of the situation in which the vision of two states was abandoned and instead, a single state was established in which the Arab minority became the majority. In that interview, Tibi is quoted as saying that such a state would be substantially different from the State of Israel today, and that the Declaration of Independence would be replaced by a civil declaration in which equality would be a supreme value, the Law of Return would be revoked, and the state’s symbols would be changed. However, Tibi expressly stated in that interview that his vision is a vision of two states – a fact that the appellants refrained from mentioning in their arguments. The appellants further referred to a short segment of a television interview with Tibi in 2011 in which he said that he cannot recognize the State of Israel as a Jewish state. These two pieces of evidence, which are not from the recent past, are not sufficient to show clearly, persuasively and unambiguously that Tibi acts for the negation of the existence of the State of Israel as a Jewish state. It should be borne in mind that we are concerned with a member of Knesset who has served for some two decades, and that no argument was presented in regard to his parliamentary activity that would support the claimed cause for disqualification (compare the Ben Shalom case, p. 251). The additional evidence presented consists of quotes regarding which there is doubt as to whether they could ground the cause of negation of the existence of the State of Israel as a Jewish state, and in any case, they are attributed to Raja Zaatra, who is not a member of the Hadash-Ta’al list for the 21^st Knesset and who claimed that the quotes were untrue. The appellants further referred to statements by Cassif, who is a member of the Hadash-Ta’al list, but as noted above, we did not find them sufficient to lead to disqualifying Cassif himself, and thus they cannot lead to the disqualification of the entire list (see and compare: the Tibi case, p. 44; the Balad case, para. 20).

76.       The evidence adduced by the appellants in all that regards the cause for disqualification concerning support for armed struggle by a hostile state or a terrorist organization against the State of Israel comprises, inter alia: a public address by Tibi in 2011 in Arabic in which, it is argued, he expressed praise for martyrs, and a report from 2007 on his participation in a march marking five years since Operation Defensive Shield in Jenin, among a crowd in which people dressed up as suicide bombers were present. In addition, the appellants referred to statements by a member of the Hadash party, Aida Touma Suleiman (hereinafter: Suleiman) in which she called the conduct of IDF forces in violent events on the Gaza border “premeditated murder”, refused to call the Hamas a terrorist organization, and argued that “an intifada by the people against the occupation is legitimate”. The appellants further referred to Suleiman’s participation in a demonstration in support of those who refuse to serve in the IDF, and to her refusal to hold a debate on women soldiers in the IDF when she served as chair of the Knesset committee for the advancement of the status of women. In addition, statements by a member of the Ta’al party, Osama Saadi, were presented expressing support for a popular struggle and who, it is claimed, refused to denounce harming Israeli citizens who reside in Judea and Samaria. The appellants also referred to statements by the chair of the Hadash faction, Ayman Odeh (hereinafter: Odeh), who refused to denounce harming IDF soldiers and thanked a Palestinian television station that praised the parliamentary activity of the Joint List in the 20^th Knesset. The appellants further referred to a report that Odeh had clashed with police in a conference of the Popular Front and Democratic Front organizations, reports on meetings of members of the list with security prisoners in prison, reports of discussions held with Palestinian leaders, and to the Hadash party’s condemnation of the decision of the Persian Gulf states and the Arab League to declare the Hezbollah a terrorist organization.

77.       I examined the said assembled evidence and arrived at the conclusion that it is insufficient under the strict criteria outlined in the case law for establishing a cause for disqualification under sec. 7A(a)(3) of the Basic Law. As the Attorney General noted, part of the evidence presented in this matter does not show – even prima facie – direct or indirect support for terrorist activity. To that one should add that some of the evidence adduced is old and even precedes the elections for the 20th Knesset, and the Elections Committee to which that evidence was presented in the past did not find that it grounds the cause for disqualification. Indeed, some of the material attributed to the representatives of Hadash-Ta’al as detailed above can be interpreted as supporting an armed struggle against the State of Israel by a terrorist organization, but given the fact that in those very same publications to which the appellants refer there are also statements by members of the list according to which they do not support violence as a political approach, the resulting doubt weighs against that interpretation. Moreover, those requesting disqualification did not present the official platform of the list, which is a primary source depicting its purposes (the second Neiman case, p. 186; the Moledet case, p. 362), and for this reason, as well, it is difficult to conclude that the list supports armed struggle against the State of Israel by a terrorist organization and that this is the central, dominant purpose of Hadash-Ta’al for the realization of which it acts in a real and consistent manner.

 

Conclusion

78.       For the reasons detailed above, I have, as stated, arrived at the conclusion that the appeal in EA 1866/19 should be granted in part, and to hold that Ben Ari is banned from contending in the elections for the 21^st Knesset, which does not apply to Ben Gvir; to overturn the Elections Committee’s decision in EA 1876/19 and hold that the Ra’am-Balad list is not barred from participating in those elections; to overturn the Elections Committee’s decision in EA 1806/19 and hold that Cassif may participate in the elections for the 21^st Knesset; and to deny the appeal in EA 1867/19 and hold that the Hadash-Ta’al list is not barred from contending in the elections for the 21^st Knesset.

 

Justice I. Amit:

            I concur in the decision of President E. Hayut, and I will add a few words of my own.

1.         Every election season, as a kind of ritual, the Supreme Court is called upon to address the disqualification of lists or candidates on the basis of the Knesset Elections Law [Consolidated Version], 5729-1969. Knesset elections are a purely political matter, and the Elections Committee reflects the relative political power in the Knesset like a mini-Knesset. As opposed to this, sec. 7A of Basic Law: The Knesset was originally enacted to reflect timeless constitutional criteria of causes for qualification that are not judged on the basis of prevailing sentiment. In view of the fundamental right to vote and to be elected, the Supreme Court established strict criteria for the disqualification of a list or a candidate, which were reviewed in para. 16 of the President’s opinion: dominant purpose; express declarations or unambiguous conclusions; non-sporadic conduct; and persuasive evidence.

            In putting those principles into practice, we examine each disqualification independently on its own merits, in accordance with the relevant cause for disqualification and the evidence referring to it, while not seeking any kind of political “symmetry” or “balance”. As I had the opportunity to say: “the voting in the Elections Committee is political, and thus the great caution that this Court must exercise as a party to the decision so as not to be infected by the political game” (EDA 1095/15 Central Election Committee for the 20^th Knesset v. Hanin Zoabi [6], para. 1 of my opinion) (hereinafter: the second Zoabi case)).

            And now to the matter on the merits.

2.         Sec. 7A(a)(2) of Basic Law: The Knesset – “Incitement to Racism”:

            The legislature stated its opinion loudly and clearly. Incitement to racism is politically out of bounds. Incitement to racism is contrary to universalist democratic values. Incitement to racism is incompatible with the values of the State of Israel as a Jewish state. Incitement to racism – not in this house and not in the Knesset. For this reason, the Kach movement was denounced and expelled from the community and placed beyond the bounds of law. Racially inciting discourse is harmful by its very nature, and as such, I am of the opinion that it should not be subject to the probability test.

3.         In the “last round”, Baruch Marzel’s candidacy was confirmed, but in his dissent, Justice Rubinstein expressed his opinion that we were concerned with “the sheerest of sheer costumes” (the second Zoabi case, para. 118 of his opinion). As the President so aptly demonstrated, the candidate Ben Ari did not even bother to put on a disguise. According to him, the logic is as follows: Whoever is not a Zionist is an enemy, the overwhelming majority of Israeli Arabs are not Zionists, therefore the conclusion is that the overwhelming majority of Israeli Arabs are to be viewed as enemies. The Attorney General was rightly of the opinion that Ben Ari should be disqualified, and we agree.

4.         Sec. 7A(a)(1) of Basic Law: The Knesset – “Negation of the existence of the State of Israel as a Jewish and Democratic State”.

            In the second Zoabi case, I noted that “the Jewish public must be sensitive to the dilemma of the Arab minority, but similarly, elected Arab representatives must conduct themselves with wisdom and sensitivity in regard to the state of which they are citizens and understand the sensitivities of the majority”. In the fascinating hearing before us, it could be inferred from the statements of those requesting the disqualification of Ra’am-Balad that a party that is not Zionist should be deemed as one that entirely rejects the existence of the State of Israel as a Jewish state and must, therefore, be disqualified. In my opinion, this argument insensitively pigeonholes a considerable part of the Arab population that, while not Zionist, identifies with the State of Israel and sees itself as an integral part of it. It is hard to accept that the State of Israel would make an outcast of anyone who is not a Zionist, or anyone who ideologically rejects the Zionist idea. Disqualifying a list or a candidate for “incitement to racism” reinforces both characteristics of the State of Israel as “Jewish and democratic”. Disqualifying a list or a candidate for discourse and speech that is not Zionist in accordance with the approach of those seeking disqualification in the present case constitutes somewhat of a lessening of the democratic element. Therefore, and for the purposes of the cause for disqualification under sec. 7A(a)(1) of Basic Law: The Knesset, the two components of “Jewish and democratic” must be balanced wisely and sensitively so that accusers will not say that our state is “democratic” for the Jewish majority and “Jewish” for the Arab minority.

            And note: we sing [in the National Anthem – trans.] “the soul of a Jew still yearns” with misty eyes, and the Law of Return, 5710-1950 is, indeed, the “Foundation Stone” of the State of Israel and a Jewish state. The Law of Return is the alpha and omega for the very existence of the State of Israel, and it is what ensures the existence of a Jewish majority in the State of Israel. But not every passing thought, notion, or expression that casts doubt about the Law of Return will inherently lead to disqualification given the strict tests for disqualification noted above (such as dominance), and perhaps the probability test as well. However, a bill to rescind the Law of Return, or a party platform that openly calls for the rescission of the Law of Return might move a list across the boundary of disqualification, and it would seem that Balad, almost as a habit, not infrequently walks on the boundary. It would not be superfluous to note that in the Tibi case (Central Elections Committee for the Sixteenth Knesset v. Tibi [1], p. 40), President Barak was ready to accept the statement of MK Bishara that he did not demand the revocation of the Law of Return. From this we can infer the result had it been otherwise claimed. This brings us to the central piece of evidence presented to us in regard to Balad, which is the Basic Law: A State of all its Citizens Bill that it presented to the Knesset, and which in effect, expresses a desire to undermine the Jewish character of the state.

5.         A number of reasons led me to the conclusion that the Balad list should not be disqualified for that bill, even without addressing the question of the probability test.

            First, most of the Balad Knesset members in the prior Knesset are not on the current list, which changes its character. Second, that bill should be seen as a sporadic act of protest following the enactment of Basic Law: Israel – The Nation State of the Jewish People. The bill is not included in Balad’s platform, it is not claimed that it was part of its platform in the past, and no systematic, consistent activity in that direction was proven. The bill should, therefore, be viewed as a one-time act that does not, in and of itself, give rise to a cause for disqualification.

6.         These are the main reasons why I am of the opinion that that the Balad party walked on the margin but did not cross it, even though the bill brought it but a step away. For my part, I will leave the grounds for the Attorney General’s opinion – that Balad did not stand alone but rather as part of a joint list of Ra’am-Balad – for further consideration. One could, on the other hand, argue that the very fact of that partnership with another party placed Balad under a higher duty of care lest crossing the boundaries might harm the other party. The other side of the coin is that the unification of parties does not grant immunity from disqualification, such that parties that may join with Balad in the future will have to take that into account. I will, therefore, leave the matter for further consideration.

 

Justice U. Vogelman:

1.         I concur in the conclusions and the comprehensive opinion of my colleague the President, and with the main points of her reasoning.

2.         The principles applicable to appeal and approval proceedings with which we are concerned are grounded in a broad range of case law, which is appropriately detailed in the opinion of my colleague the President.

3.         My colleague the President addresses the difference between an elections appeal and an elections approval, and on the various approaches in our case law in regard to the scope of the Court’s review in the different proceedings. My colleague Justice I. Amit, for his part, addresses the caution that the Court must adopt, in his view, in proceedings such as these due to the fact that the vote in the Elections Committee if political.

4.         I see no need to set in stone the proper approach among those enumerated by my colleagues (inasmuch as each of them leads to the same result in the instant case). However, I would like to emphasize that, in my view, given the nature of the rights and balances involved, the “political” considerations cannot be given weight in terms of the constitutionality of the decisions, and that the political nature of the proceeding in the Central Elections Committee is not meant to influence the form of judicial examination and its scope.

5.         On the matter of disqualification for incitement to racism.

            The first matter I wish to address in this regard concerns the application of probability tests for the realization of the dangers that the causes for disqualification are intended to prevent (a question that has not yet been resolved in our case law). In the context of the said cause, I would like to point out that, in my view, there is no place for a “probability test” inasmuch as racist expression is not worthy of protection. In the words of Justice D. Beinisch: “Racism is the kind of affliction whose isolation and removal from the political and social arena is an essential condition for preventing its spread” (EDA 11280/02 Central Elections Committee for the Sixteenth Knesset v. Tibi [1], p. 88) (hereinafter: the Tibi case)).

            The words of Justice Procaccia in the same matter are apt:

The phenomenon of racism in the chronicles of history and the annals of the Jewish people is special and unique. Nothing compares to its rejection and the defense against it even among the many protections of the fundamental human rights that the constitutions of western states diligently labor to ground. The moral, ethical taint of incitement to racism, against the background of its deep opposition to the universal concept of human rights, and in view of the atrocities of the Holocaust of European Jewry that was annihilated due to racial theory, does not tolerate its inclusion on the podium of ideas and opinions of political discourse. That is so, even if there is no foreseeable danger whatsoever of the realization of the inciter’s dogma, and even if his words are like “a voice crying out in the wilderness” without echo and without being heard.

Racism is condemned, and it must be eliminated by virtue of the International Convention on the Elimination of All Forms of Racial Discrimination of 1966, of which Israel is a signatory. The parties to it pledged not to sponsor racial discrimination and to adopt immediate measures in order to uproot every phenomenon of racism (arts. 2, 4, and 5 of the Convention).

The condemnation of racism takes on a special dimension in Jewish tradition in view of the blood-soaked history of a nation that was a victim of the manifestations of this phenomenon over generations. Racism stands in contradiction to the fundamental values of the State of Israel as expressed in the Declaration of Independence, according to which full social and political equality must be ensured for all citizens regardless of religion, race, and sex. The depth and force of the condemnation of racism as a social phenomenon do not accord with granting of an opportunity to a candidate to run for office on the basis of racist ideas among the range of opinions and perspectives expressed in political discourse. Standing for election on the basis of racist ideas flies in the face of the educational, moral purpose of inculcating the principles of equality and tolerance in Israeli society. These ideas cross the bounds of the red line that guarantees tolerance even for expressing deviant ideas and views. Casting them out beyond the pale is necessary so that expressing them will not be interpreted, even by inference, as granting approval and legitimacy to those who hold them to participate in the life of the state (and compare: R. Gavison, Twenty Years since the Yeredor Ruling – The Right to be Elected and the Lessons of History, p. 173).

                        […]

In this spirit, the condemnation of incitement to racism and its removal from the framework of political contest is a value unto itself, unconditional and unrestricted even where there is no attendant probability whatsoever of the realization of its potential danger. There is no need to seek manifest or hidden elements of danger in order to deny the entrance of inciters to racism into the political arena (compare the words of Justice E. Goldberg in the meeting of the Knesset Elections Committee in the matter of the disqualification of the Kach party, Oct. 5, 1988, p. 47ff.). Incitement to racism is condemned as a value of universal and national heritage, and it stands above and beyond the probability test of its foreseeable danger on the basis of some criterion or another. The contradiction between racism and the fundamental values of the stare is so deep that anyone who embraces it in his political thought should be disqualified from the outset (the Tibi case, pp. 89-90).

            I agree with every jot and tittle of these true words.

6.         Moving from the general to the specific – my colleague well described the factual grounds upon which we decided that the cause of incitement to racism is met in the case of Ben Ari, and it would be superfluous to reiterate the well-grounded presentation of the evidentiary foundations. Ben Ari’s incitement extends to a broad range of subjects, among them a call for excluding Arab citizens from residing within the limits of an Israeli city, recall dark periods in the history of nations. The addition of the cause for disqualification with which we are concerned to the Basic Law by the constituent authority of the State of Israel was intended for a war against such phenomena, and it is our role to interpret the Constitution and maintain its boundaries.

7.         The matter of Ben Gvir is different. I concur with my colleague’s conclusion – which ascribed weight to his declarations concerning changing his manner – that the foundation amassed in his regard does not amount to a “critical mass” that grounds a cause for disqualification.

8.         As for the Ra’am-Balad list – as my colleague notes, the entirety of the evidence adduced is not qualitatively different from what was presented to this Court in previous proceedings that concerned the question of the disqualification of Balad and members of the list in which it was held that it did not constitute a sufficient foundation for disqualification. I see no need to address the Basic Law bill that Balad presented, to which my colleagues referred, given that the Balad Knesset members who served in the last Knesset are not included in the current list, and given the clarification by the list’s attorney that the bill is not part of Balad’s platform.

9.         In the matters of Ofer Cassif and the Hadash-Ta’al list, as well, I concur with the conclusion that the evidentiary foundation is insufficient to ground the claimed causes for disqualification.

 

Justice M. Mazuz:

            I concur in the main points of the reasons and conclusions of President E. Hayut, and I wish to add two comments. Because they are not necessary for the decision, I will state then in brief:

1.         The cause of “negation of the existence of the State of Israel as a Jewish state”:

            As we know, the cause of “negation of the existence of the State of Israel as a Jewish and democratic state” under sec. 7A(a)(1) of Basic Law: The Knesset formerly comprised two separate causes: “Negation of the existence of the State of Israel as the state of the Jewish people”, and “negation of the democratic character of the state” (secs. 7A(1)-(2)). The two causes were unified in the framework of a 2002 amendment to Basic Law: The Knesset that added the authority to disqualify a candidate (not just a list) and the cause of support for armed struggle by a hostile state or a terrorist organization against the State of Israel. As explained in the Explanatory Notes, this unification derived from the desire for uniformity between the wording of sec. 7A and sec. 5 of the Parties Law, 5752-1992 (“and this because the two sections are interrelated”), and was not intended to introduce a change in the content of these causes by virtue of their unification.

            In practice, the unification of the causes, which involved a certain change in the wording of the cause, was the basis for an interpretation of this cause that was both different in content and broader in scope. While under the prior wording, the cause of “negating the existence of the State of Israel as the state of the Jewish people” addressed the negation of the view that the State of Israel is the state of the Jewish people in the sense of the place in which it realizes its right to self-determination, under the unified wording, the term “Jewish state” was interpreted as referring to the internal content of the state’s identity and the elements of the Jewish identity of the state from within (“the primary symbols” of the state and the “nuclear characteristics” of its Jewish identity).

            In my opinion, the proper interpretation of the cause for disqualification of “negating the existence of the State of Israel”, like the separate cause under the prior wording, refers to the identity of the State of Israel as the state of the Jewish people in the national sense, as the place in which it realizes its right to self-determination, and not as referring to internal features of the state that characterize it as a Jewish state. This position has consequences, inter alia, in regard to how to view the Basic Law: A State of all its Citizens Bill introduced at the time by Knesset members of Balad, however, in view of the President’s conclusions in this regard (para. 58), I see no need to expand upon my approach to the bill and I will only note that I agree in principle with the comments of Justice I. Amit in paras. 4-5 of his opinion.

 

2.         A Probability Test and Incitement to Racism:

            This issue has been addressed on several occasions in previous case law, beginning with the first Neiman case, and various opinions – mostly rejecting it in general, or at least in regard to the cause of incitement to racism – but it has been left for further consideration and remains undecided.

            I am of the opinion that there is no place for a probability test in applying the causes for disqualification under sec. 7A of Basic Law: The Knesset. The probability test has no grounding in the language of the law, and it raises many – theoretical and practical – difficulties in its application. I will not presume to exhaust all the reasons for this position, but will suffice with a few words: first, in terms of the interpretation of the law. As we know, the interpretation of a statute begins with its language and is limited by it. There are no grounds for requiring a probability test in the language of sec. 7A. Section 7A refers to objectives and actions, including statements, by a list or candidate. We are concerned with causes of “conduct” not “results”. Second, the Court, called upon to approve or review a decision by the Central Elections Committee to disqualify a candidate or list, lacks the tools for applying a probability test for the purpose of approving or rejecting the probability evaluation of the Elections Committee. A probability estimate in the public-political context is inherently speculative, and the Court would do well to refrain from it. Third, and this is the main point, sec. 7A treats of the lack of legitimacy of a list or candidate who meets the disqualification criteria to participate in the “democratic game”. The theoretical basis for disqualifying lists or candidates, as stated, does not suffice by preventing a real, concrete threat, but primarily concerns not granting legitimacy to lists of candidates whose objectives and actions are beyond the legitimate democratic boundaries for participating in the democratic elections.

            It would appear that the cause of “incitement to racism” under sec. 7A(a)(2) well demonstrates this. Incitement to racism and racist acts are unacceptable per se, as they are contrary to the most basic values of a democratic society, which is founded upon the idea of the equality of human beings. We are concerned with universal values accepted in the law of nations. Under the International Convention on the Elimination of All Forms of Racial Discrimination, known as the CERD Convention – signed by the State of Israel on March 7, 1966, ratified on Jan. 3, 1979, and entering into effect on Feb. 2, 1979 – the State of Israel assumed, like the other signatory nations, inter alia, the obligation to prohibit racial and other discrimination and to adopt all means, including legislation, to bring about its end (art. 2(1)(d) of the Convention). In 1985, together with the amendment of Basic Law: The Knesset and the addition of sec. 7A, the Penal Code was also amended with the addition of Article 1A: Incitement to Racism, which established various offences of incitement to racism (both amendments were included in the same pamphlet of bills – H.H. 5745 193). The offences of incitement to racism are conduct crimes, not result crimes, and do not comprise an element of probability (“it does not matter whether the publication did cause racism” – sec. 144B(b)).

            Incitement to racism is, therefore, prohibited and unacceptable without regard for the probability of the realization of its objectives. It is an illegitimate form of discourse in a democratic society. Incitement to racism does not represent any protected value that requires a balancing of interests. The value of freedom of expression, which is the life breath of democracy, was intended to protect non-violent public debate and to permit a conceptual contest among legitimate values in a democratic society. Racist discourse “pollutes” the democratic discourse and undermines the purpose of conceptual inquiry among the members of society and the free establishment of views on the basis of democratic values. Therefore, the reason for preventing the participation of a list or candidate that incites racism in the elections is not restricted to a fear of the realization of the objectives of the incitement, but is primarily concerned with the public value of not granting legitimacy to racist speech as part of the democratic discourse. In this sense, the cause for disqualification for incitement to racism is a special case of the cause relating to the negation of the democratic character of the state.

            Lastly, I would emphasize that I do not believe that the probability test is necessary for mitigating the causes for disqualification or for granting flexible tools for their application. To that end, the case law established a strict, narrow interpretive approach to the causes of disqualification. Strict criteria were also established that are implemented in judicial review of this matter, among them the demand that the objectives attributed to a list or candidate constitute a central, dominant objective and not a secondary, marginal issue, and the requirement of active, consistent, and systematic action for the realization of those objectives. It was further held that the evidence for disqualification must be persuasive, clear and unambiguous. All of these provide the Court with effective tools to ensure that the disqualification authority, which is an exceptional and intrusive authority, be exercised only in extreme, clear cases, without the need for the problematic means of a probability test.

 

Justice N. Sohlberg:

1.         If we were to interpret and implement the causes for disqualification in sec. 7A of Basic Law: The Knesset as written, as they would be understood by the average person, then not only would Dr. Michael Cassif be barred from candidacy for the Knesset elections. A plain reading of the section would, in all probability, lead us to conclude that additional lists and candidates whose matters have been examined by this Court over the years would also be granted this dubious honor.

2.         However, that is not the case. From the very outset, this Court adopted a strict approach to the legal interpretation of sec. 7 and to its application in practice. This approach reflects a value-based decision that democracy grants special – almost supreme – importance to the constitutional right to vote and be elected. Disqualifying a list or a candidate from standing for election to the Knesset must be the very last resort; one that is reserved for manifestly extreme case in which there is no room for doubt: “The essence of such a matter, the limitation of a basic constitutional right, inherently carries a standard of interpretation that must be strict and narrow, and section 7A should be reserved for only the most extreme cases. This interpretive approach does not conflict with the statute but is rather a result of a proper understanding of the purpose of the statute, which does not seek to limit freedoms, but to protect them against actual danger” (the second Neiman case, p. 187; emphasis here and below added – N.S.). This approach has become firmly rooted in the case law of this Court: “Preventing the participation of a party in the elections is a most extreme step. The right to vote and to be elected is a right of the highest constitutional level” (HCJ 5364/94 Wilner v. Chair of the Israel Labor Party [21], p. 802, per Deputy President A. Barak); “Preventing a party from participating in the elections is an extreme and exceptional step that in many ways directly contradicts the fundamental principles upon which democracy rests” (the Balad case, para. 3 of the opinion of President Beinisch); “Preventing participation in Knesset elections is an extreme step that is reserved for the most exceptional cases for which the normal democratic tools are insufficient” (the second Zoabi case, para. 75 of the opinion of President M. Naor).

            I will briefly summarize the guiding criteria as expressed in the case law: Barring participation in Knesset elections will only be done as when all else has failed.

3.         Recently, in the Basic Law: The Knesset (Amendment no. 47) (Prevention of Participation in Elections due to a Candidate’s Statements) Bill, the constituent authority expressed the view that it accepts the narrow path taken by the Court in applying sec. 7A. The bill expressly established that a person’s actions also include his statements. The Explanatory Notes clarify as follows: “The proposed amendment expressly anchors the approach accepted in the case law in this matter, according to which “actions” under sec. 7A of the Basic Law also include statements. Thus, the amendment is not intended to alter the Court’s case law according to which the application of sec. 7A of the Basic law will performed narrowly and strictly in order to protect the state’s most vital interests” (H.H. 675, p. 52). However, there was also some criticism of the direction of the case law, on the need to take care not to adopt an overly restrictive interpretation of the causes for disqualification in sec. 7A, while unduly expanding the boundaries (see, e.g., the second Zoabi case, para. 8 of the opinion of Deputy President E. Rubinstein).

4.         The criteria developed in the case law for the application of sec. 7A, which reflect the narrow interpretive approach, were set out in para. 16 of the opinion of my colleague the President. Primarily, in brief, one must show that the cause for disqualification can be found in the objectives or the actions of the list or candidate; those objectives or actions must form part of the dominant characteristics of the actions of the party or candidate; they can be learned from express declarations or from unambiguously probable conclusions; theoretical objectives are insufficient, but rather one must show systematic “activity in the field” that must constitute severe, extreme expression in terms of its intensity; and lastly, the evidence based upon the above must be “persuasive, clear, and unambiguous”.

5.         On the basis of those criteria, my colleague the President found, and my colleagues concur, that the evidentiary foundation in the matter before us paints an unambiguous and persuasive picture according to which Ben Ari “systematically inflames feelings of hatred toward the Arab public in its entirety, while continually demeaning that public” (para. 42 of the President’s opinion). Therefore, she held that he must be disqualified.

6.         I considered and reconsidered the matter. I carefully read the various statements, watched and listened. I considered the various clarifications and explanations over and over again, and the dilemma was difficult and weighed heavily. I did not easily decide to disagree with my colleague’s conclusion. The source of my dilemma was the substantial gap between the image of Ben Ari as reflected in the virtual arena – in the social networks – and that shown us in the Elections Committee’s hearings and in the Court. Thus, in his affidavit in the instant proceeding, Ben Ari rejected the claims about his racist views, and declared, inter alia, as follows:

I do not think that people are of different value due to their ethnic, national or religious origin. All human beings were created in the Divine image, and all human beings were granted free choice. Your own deeds will cause you to be near, and your own deeds will cause you to be far[1] […] In my view, the Arab National Movement, whose purpose is to destroy Jewish sovereignty through the use of violence and terror is the enemy of the State of Israel, of the Jewish people and of Zionism. I would like to emphasize that what makes it an enemy of the state, the people and of Zionism is not the ethno-national origin of its members and supporters, and not their religious belief.  What turns the members and supporters of the Arab National Movement into enemies are the political objectives that this movement established and the ways in which it acts for the realization of those objectives since the beginning of the 20^th century and to this day […] Anyone who accepts that the State of Israel is the state of the Jewish people and agrees that Israel is a Jewish and democratic state is a desirable citizen who is worthy of all the civil, social and political rights without regard for religions, race, sex, ethnic origin or skin color. In addition, I am of the opinion that basic human rights are granted to every person as such, and that the state must act justly and fairly toward every person without regard for religion, race, sex, ethnic origin, or skin color (paras. 9, 16-17 of the affidavit).

7.         Further on in the affidavit, Ben Ari addresses all the statements quoted in his regard (as opposed to in the hearing before the Elections Committee, in which he addressed only a part of them) and explained that “all of my arrows are directed against those who are not loyal to the State of Israel and hostile to the Zionist enterprise. Even if, at times, my words may sound or be apprehended as general, that absolutely does not reflect an intention to generalize, and in no way reflects my true, consistent opinion” (para. 22 of the affidavit). Like the cases adjudicated by this Court in the past, real doubt arises in regard to the sincerity of Ben Ari’s declarations.

8.         Three examples from the past: (a) Baruch Marzel declared, at the time, that he had recanted his prior views, that he sought to act only in accordance with the law, accepts the principles of democracy, and had withdrawn from the path of generalized statements of the Kach movement. A long line of evidence led the Court to a conclusion in regard to “a real doubt as to the sincerity of Mr. Marzel’s declarations, according to which he had disavowed his approach and his former racist, undemocratic ideology” (the Tibi case, para. 81 of the opinion of President A. Barak). Later, prior to another election, President M. Naor stated: “I, too, do not believe that Marzel has changed his views and thoughts” (the second Zoabi case, para. 33). (b) Hanin Zoabi declared, at the time, her opposition to violence, and nevertheless “it was difficult for me to be persuaded that MK Zoabi does not support armed struggle” (ibid., para. 7 of the opinion of my colleague Justice I. Amit). (c) MK Azmi Bishara argued, at the time, that he opposed violence and armed struggle, and he, too, did not earn much trust: “There is doubt in our hearts. But the doubt must act – in a democratic state that believes in freedom and liberty – in favor of the freedom to vote and to be elected” (the Tibi case, para. 46 of the opinion of President A. Barak).

            As may be recalled, Hanin Zoabi and Azmi Bishara served honorably as members of the Israeli Knesset. Marzel’s candidacy was also approved, twice, although he was not elected. And what of the case of Ben Ari? In the end, his statements “in real time” speak for themselves, and clearly to his detriment. I will not belabor the point and repeat what has already been presented at length in the opinion of my colleague the President. I will suffice by referring there, and the reader will not be pleased. The statements are not at all consistent with the tolerant, placating tone that arises from the above affidavit presented in these proceedings. Which Ben Ari should we therefore believe?

9.         Ultimately, I inclined to the view that there is no justification for ordering Ben Ari’s disqualification. I have not arrived at this conclusion because I take incitement to racism lightly, but because I am strict in regard to the fundamental constitutional right to vote and to be elected. Given the strict criteria applied in the case law of this Court over the years, and in view of Ben Ari’s explanations and clarifications, there is doubt as to whether the statements amount to incitement to racism or a negation of the democratic character of the State of Israel to the point that would justify barring Ben Ari from running in the Knesset elections. Indeed, the fundamental right to vote and to be elected is not absolute. In appropriate circumstances, it is proper to limit it, but that is not the situation in his regard. While the evidentiary foundation in the matter of Ben Ari is broad in scope, it is not more exceptional, extreme and severe in “quality” and intensity than matters brought before this Court in similar cases (both in the Tibi case and the second Zoabi case). While Israeli democracy requires protection, it is still strong enough to comprise even Ben Ari as a member of Knesset (as we may recall, Ben Ari already served in the position in the recent past, in the years 2009-2013).

10.       This result is required for two additional considerations that are of a practical nature: First, the procedural framework in which we act. As we know, sec. 7A was presented to the Knesset together with the Penal Law (Amendment no. 24) Bill, 5745-1985, which established an express criminal prohibition upon incitement to racism. “We are determined to combat the phenomenon of incitement to racism with full force. To that end, we decided to act on two planes – on the constitutional plane, by including incitement to racism as a cause for the disqualification of a list of candidates from participating in Knesset elections, and on the penal plane – establishing an offense of incitement to racism in the Penal Law” (from the statement of the Minister of Justice, MK Moshe Nissim, in presenting the bills for a first reading; Knesset Record (5745), p. 2381). As opposed to the criminal process, which is conducted in accordance with a clearly defined framework of procedure, which includes, inter alia, an evidentiary proceeding in which it is possible to question and interrogate carefully, in the constitutional proceeding before this Court, the factual examination is far more limited. This requires us to be especially careful in drawing conclusions and establishing facts on the basis of the evidentiary foundation presented before us. Second, lest we forget: Even after a candidate has cleared the hurdle of sec. 7A, Israel is not bereft:[2] “The very fact that a candidate is permitted to contend in the Knesset elections does not mean that from the moment he is elected he may do whatever he pleases. There is still the possibility of rescinding the immunity of a member of Knesset in certain situations, placing him on trial if it be found that he committed a criminal offense, and terminating his tenure in the Knesset if he is found guilty of an offense of moral turpitude” (the first Zoabi case, para. 35 of the opinion of President A. Grunis).

11.       It cannot be denied that Ben Ari’s statements – at least in large part – are hard to digest. I was, indeed, very annoyed by his callous style, the racist tone, and the coarse generalities. It does not do honor to him or to those who listen to his teachings. We can and should protest against evil, and against those who seek our harm and our lives – foreign and domestic. But we are obliged – particularly as public servants – to do so responsibly and carefully. Nevertheless, even when common sense protests and the soul recoils from Ben Ari’s statements, there is still no justification for placing him beyond the pale. The strength of freedom of expression, the strength of democracy “is not the recognition of the right to speak pleasantries that are soothing to my ears. Its strength is in the recognition of the right of the other to say things that are grating upon my ear and that pierce my heart” (HCJ 14/86 Laor v. Theater and Film Review Board [22], p. 441). That is true of freedom of expression in general, and of political speech in particular, when what is at stake – we will not refrain from repeating – is a mortal blow to the fundamental constitutional right to vote and to be elected.

12.       I wholeheartedly concur with my colleague the President on our obligation to combat racism uncompromisingly. As a son of my people and a descendant of my family, I am well aware of where the terrifying harm of hate of the stranger and the different leads. But make no mistake, the two are not comparable, and not even close. And note: the struggle against racism is not only on the legal plane, but also – and primarily – on the educational plane, “in a reassessment of the ways of educators and pupils alike, in all walks of our society” (the first Neiman case, p. 302). In this regard, it would be proper to quote what Rabbi Zvi Yehuda Kook wrote in the month of Nissan 1947 in a letter to the principals and teachers of a Jerusalem school. The Minister of Justice, MK Moshe Nissim, quoted part of the letter, titled “Embarrassing and Sad Conduct of Children”, in presenting the bill in regard to sec. 7A to the Knesset plenum for a first reading, as follows:

To the Principal and Teachers of a school here in our Holy City, may it be rebuilt and reestablished!

I must bring the following matter to your honorable attention, as follows: This morning, while passing by the school on the way to Yaffo-Ben Yehuda Street, I saw some from among a group of children from the school repeatedly hitting and coarsely taunting Arab peddlers who passed there. Twice together – at the two Arabs, one young and one old, who were apparently partners, beginning with the younger one and continuing with the older one with particular coarseness. This occurred a short distance from the gate to the schoolyard. Then again at a youngster on the sidewalk of Jaffa Road, at the corner of Ben Yehuda Street.

I was saddened and very ashamed by what I saw. Due to their running and mischief, I was unable to catch them and rebuke them for this. I do not know who these children are, or who are their parents and teachers. I know only that they were from the school. Not all of them, not all of the group of children from the school, took part in that despicable harm and taunting, but some of them. And I believe that some of them protested.

Nevertheless, the very existence of this fact, which pained and insulted me, as noted, requires that I bring to your awareness the need for greater and special educational attention to bringing an end to such possibilities, both in and of itself as a matter of Jewish law and morality, and in terms of the practical community and political value of preserving peace and good neighborliness.

With all due respect and in the hope of the glorification of God and the salvation of his people and heritage.

            Here we see plain, clear, resolute, human Jewish morality. We must walk in its light.

13.       For the same reasons for which I was of the opinion that we should not order the disqualification of Ben Ari, I arrived at the conclusion that the Election Committee’s decisions in the matters of the Ra’am-Balad list and of Dr. Ofer Cassif should be overturned and that the appeal in regard to the Hadash-Ta’al list should be denied, and that we should hold that they are not barred from participating in the Knesset elections. As in regard to the decision is the matter of Ben Ari, this decision, as well, was not at all easy. Some of the statements presented to us – both those attributed to Cassif and those attributed to other members of the Hadash-Ta’al list – are not pleasant to the ear, to put it very mildly. But just as we are enjoined and stand ready to defend against those who would incite to racism and thereby undermine the democratic character of the State of Israel, so we must defend against those who would undermine its Jewish character and who express support – express or implied, publicly or privately – terrorist attacks and murder. In the course of the debate on sec. 7A, prior to its first reading, MK Michael Eitan rightly stated in this regard:

The State of Israel has a political need to provide an answer to a long list of families of Jewish victims who were harmed solely because they are Jews here in the State of Israel on the question of whether the purpose of defensive democracy, that has been and is employed, is to protect them, as well. Can Jews in the State of Israel who are harmed by the agents of the PLO also find an answer in such legislation that is intended to defend democracy to the fact that there are people in the State of Israel who identify with the PLO and see themselves as its agents? And there is also a Knesset faction that once sent a telegram expressing solidarity to the Palestine National Council in Amman, which identifies with the PLO. Where is defensive democracy in their regard? Where is the symmetry? Should democracy defend itself only against insane Jewish fanaticism?

                        […]

When we discuss the issue of defensive democracy, we have to provide an answer to the Bromberg family, the Tamam family, the Ohana family, and a long list of families that daily ask the simple question: Is the purpose of defensive democracy to defend us as well, or is the only answer that marginal group to which we all take exception? And when I ask that question, I understand that we are treading a delicate, sensitive line because we are concerned with a democratic regime, we are not interested in silencing debate, we are not interested in outlawing lists. But in any event, we must ask ourselves the question what is the boundary line?

14.       Indeed, the question of where the boundary lies is difficult. It would seem that thirty years after the constituting of sec. 7A of Basic Law: The Knesset, there is no clear, unambiguous answer to this. In any case, as presented above, the special importance of the fundamental constitutional right to vote and to be elected obligates us to strict criteria whose bottom line is that when there is doubt, there is no doubt. Therefore, and for the reasons stated in the opinion of my colleague the President, I am of the opinion that what has been adduced before us is insufficient for ordering the disqualification of the candidacy of Cassif, the Hadash-Ta’al list, and the Ra’am-Balad list.

15.       One parenthetical objection: In the matter of the Balad party, the Attorney General noted that “were the Balad party running independently … there would be reason to carefully consider its disqualification”. However, “in view of the fact that under the prevailing legal situation, there is no possibility of disqualifying only half of a list (as opposed to disqualifying an entire list or disqualifying specific candidates on the basis of evidence relating to them personally), and in view of the fact that there are almost no arguments against the Ra’am list, it is necessary to examine whether the existing evidence suffices to justify disqualifying the joint list, in view of the case law of the honorable Court in regard to the need to severely limit such a disqualification”. My colleague the President did not expand upon that matter, having found other reasons for not ordering the disqualification of Balad (although she attributed weight to the fact that we are concerned with a joint list). For my part, I find the present legal situation very problematic, when a party that prima facie meets the requirements of one of the causes for disqualification can join with another party such that the joint list provides it with a “city of refuge”. This should be given consideration when and if the need to address this question arises in the future.

16.       In conclusion, where my opinion accepted, we would overturn the Election Committee’s decision in EDA 1806/19; deny the appeals in EA 1866/19 and EA 1867/19, and grant the appeal in EA 1876/19, and hold that Dr. Ofer Cassif, Dr. Michael Ben Ari, Advocate Itamar Ben Gvir, the Hadash-Ta’al list and the Ra’am-Balad list are not barred from standing for election to the Knesset.

 

Justice A. Baron:

            I concur in the comprehensive opinion of President E. Hayut, both in the conclusion she reached in each of the proceedings before us and in her reasoning. I will briefly add my view of the disqualification of the candidacy of Dr. Michael Ben Ari (hereinafter: Ben Ari) for election to the 21^st Knesset, in which we are concerned with an exceptionally extreme step, akin to a “doomsday weapon”.

            The racist statements in the warp and weave of all of the recorded statements of Ben Ari cry out from the page and scorch the ears. Words are not “just” words. There are times when words are also acts, and in the case of Ben Ari’s statements they constitute a clear act of incitement to racism. Ben Ari makes improper use of words to arouse hatred against the Arab public, while portraying all Arabs as murderers and bitter enemies. His statements delegitimize an entire community, instigate conflict and strife, and even call for actual violence against Israeli Arabs. Moreover, we were presented with a solid evidentiary foundation that clearly shows that we are concerned with a severe, extreme case of incitement to racism. The racist statements are explicit, systematic (some 40 instances since 2017 alone), constitute a dominant characteristic of Ben Ari’s statements, and gain wide exposure in the media and on the social networks.

            The principle of freedom of expression, and particularly freedom of political expression, is a cornerstone of a democratic regime. According to this principle, “freedom of expression is not just the right to say or hear what is generally acceptable. Freedom of expression is also the freedom to express dangerous, irritating, deviant ideas that the public reviles and despises” (HCJ 399/85 Kahane v. Broadcasting Authority [23], p. 280). Words and statements can thus find refuge under the aegis of freedom of expression even when they express marginal ideas, and even when they arouse disgust, but given their “critical mass”, as noted above, Ben Ari’s words constitute incitement to racism and therefore undermine fundamental principles of democracy. As the case law of this Court has already made clear, “one who does not accept the fundamental principles of democracy and seeks to change them cannot ask to participate in democracy in the name of those principles” (EDA 11280/02 Central Elections Committee v. Tibi [1], 14). In this regard, I would note that in my opinion, as well, incitement to racism does not merit any protection, and therefore there is no place for applying a “probability test” as a condition for the application of the cause under sec. 7A(a)(2) of Basic Law: The Knesset.

            Ben Ari did not apologize for his statements and did not retract them. And if that were not enough, even his explanations continue to reflect a racist attitude toward the Arab public. According to Ben Ari, his recorded statements are not directed against the entire Arab public, but only toward those among it who are not “loyal” to the State of Israel. However, the recordings deliver a clear message that any Arab is disloyal, a traitor, and enemy, and dangerous by definition. We are, therefore, concerned with an extreme case that requires Ben Ari’s disqualification from participating in the elections for the Knesset.

 

Justice D. Mintz:

            I concur in the opinion of my colleague the President in regard to the partial granting of the appeal in EA 1866/99 and with the holding that Ben Ari is barred from participating in the elections for the 21^st Knesset, which is not the case in regard to Ben Gvir. I also agree that the appeal in EA 1867/19 should be denied, and that it should be held that the Hadash-Ta’al list is not barred from contending in the elections for the 21^st Knesset. However, I cannot agree with the position in the matter of overturning the Election Committee’s decision in EA 1876/19 in the matter of the Ra’am-Balad list and in EDA 1806/19 in the matter of MK Ofer Cassif. In my view, those decisions should be left standing, and we should hold that the Ra’am-Ta’al list and MK Cassif are barred from participating in the elections for the Knesset, as I shall explain.

Foreword

1.         The starting point for this discussion is that the restrictions upon the constitutional right to vote and to be elected to the Knesset must be minimal, and they must protect the most vital interests of the state (HCJ 5364/94 Wilner v. Chair of the Israel Labor Party [21], pp. 802-803). This Court has recognized the justification for limiting those rights even before an express provision was enacted to permit the disqualification of a candidate or list from participating in the elections for the Knesset when it was long ago held that the right to vote and to be elected can be limited in order to protect the very existence of the state (EA 1/65 Yeredor v. Chairman of the Central Elections Committee for the 6^th Knesset [8], p. 387) (hereinafter: the Yeredor case); EA 2/84 Neiman v. Chairman of the Central Elections Committee for the 11^th Knesset [4]) (hereinafter: the first Neiman case)). And as Justice J. Sussman stated: “Just as one need not consent to be killed, so a state need not agree to be annihilated and wiped off the map.” (the Yeredor case, p. 390). The restriction of rights is justified in the name of the right of a democracy to defend itself against those who would seek to employ democratic tools for the purpose of negating the very existence of the state, harm its fundamental principles or advance anti-democratic objectives (EDA 9255/12 Central Election Committee v. Zoabi [3], para. 8 of the opinion of President A. Grunis); EDA 1095/15 Central Election Committee for the 20^th Knesset v. Hanin Zoabi [6], para. 7 of the opinion of President M. Naor) (hereinafter: the Zoabi case).

2.         The desire to prevent the use of democratic tools to advance anti-democratic objectives that undermine the existence of the state stood at the basis of the enactment of sec. 7A of Basic Law: The Knesset (hereinafter also: the Basic Law), to which various amendments were made over the years. The last, in 2017 (Basic Law: The Knesset (Amendment no. 46), 5777-2017 (hereinafter: Amendment no. 46)) clarified that a candidate could be disqualified if his objectives or actions, “including his expressions”, included the negation of the existence of the State of Israel as a Jewish and democratic state, incitement to racism or support for an armed struggle by an enemy state or of a terrorist organization against the State of Israel. The legislature had its say and defined the boundaries of the right to vote and to be elected in light of the basic and most vital principles for the existence of the state.

3.         It should be noted that sec. 7A of the Basic Law is not the only legal provision that restricts the use of a right granted by democracy in order to prevent harm to the basic, most vital principles for the existence of the state in general, and its existence as a Jewish and democratic state in particular. This purpose is also expressed in the framework of sec. 5 of the Parties Law, 5752-1992, which denies the possibility of registering a party, inter alia, for the causes enumerated in sec. 7A of the Basic Law. Section 1(a1) of the Knesset Members Immunity, Rights and Duties Law, 5711-1951 defines the limits of the material immunity granted to an elected official by virtue of his office in a manner similar to that in sec. 7A (HCJ 11225/03 Bishara v. Attorney General [13], pp. 306-307). As the President also noted, the Basic Law was amended in 2016 to include a provision authorizing the Knesset to end the tenure of a member of the Knesset for incitement to racism or for supporting armed struggle against the State of Israel (the cause of negating the existence of the State of Israel as Jewish and democratic was not included in the framework of that provision in view of its being general and more ambiguous, and upon the presumption that the Knesset plenum would have difficulty applying it (see: HCJ 5744/16 Ben Meir v. Knesset [12], para. 29 of the opinion of President E. Hayut).

4.         These supplementary provisions define a clear boundary beyond which actions, objectives and expressions are not legitimate for elected representatives and for a party or list of elected representatives. The gates of the house of representatives are not open to those who seek to harm the character of the State of Israel as Jewish and democratic (including the cause of “incitement to racism”, which constitutes a special case of harm to the democratic foundations of the state) or to support an armed struggle against it and thus to support a threat to its very existence. What is concerned are actions that do not afford material immunity for those who succeeded in being elected to the house of representatives. Some of those causes also permit the termination of the tenure of those who seek the state’s harm. The underlying premise is that a person who seeks to take an active part in Israeli democracy and its institutions must accept the principles of its existence and the democratic “rules of the game” (see, for example: EDA 11280/02 Central Elections Committee v. Tibi [1], p. 23 (hereinafter: the Tibi case)). This, even though such actions or expressions may sometimes fall within the bounds of freedom of expression granted to every person in the state. In other words, what is permitted to every person is not necessarily granted to a person who seeks to be elected to the legislature. The reason for this is clear: the principle of freedom of expression grants every person the freedom to express himself even in a manner that contradicts the principles of the Jewish and democratic regime of the State of Israel (within the bounds of the law). However, permitting a person who voices such ideas to be elected to the legislature may lead to a situation where he will “import” his ideas into the legislature and thus undermine the foundations of the regime upon which the state rests by implementing or realizing his ideas. In this regard, Justice T. Strasburg-Cohen nicely distinguished the two (in the Tibi case, p. 70):

It would be appropriate to note that Israeli democracy does not prevent Knesset Member Bishara from expressing his views, which he terms “theoretical”, “philosophical”, or “historical”, from any platform, in accordance with the law. However, as far as membership in the Knesset is concerned, those views that are part of his political views, and he seeks to implement and realize them, inter alia, by means of his membership in the Knesset. Therefore, those views greatly deviate from theory, philosophy, and history and cross into the area of political activity.

 

The Causes for Disqualification and Amendment no. 40 of the Basic Law

5.         The criteria established in the case law in regard to the implementation of the provisions of sec. 7A of the Basic Law were clarified at length by the President, and I do not intend to dwell upon the matter. I will only say a few words about the distinction in the framework of this provision between disqualifying a candidate and disqualifying a list from participating in the Knesset elections. Thus, while the section establishes that “a list of candidates shall not participate in elections to the Knesset … should there be explicitly or implicitly in the goals or actions of the list …” (emphasis added – D.M.) one of the causes enumerated therein. The wording in regard to the disqualification of a candidate is somewhat different. As it reads at present, after Amendment no. 46, the disqualification of a candidate shall be possible “should there be in the actions of the person, including his expressions” one of the causes enumerated in the section. This difference is no trifling matter.

6.         As we know, a law is interpreted in accordance with its language and purpose. First, the starting point of interpretation is the language of the law, where the written text should be given the meaning that its language can carry (Aharon Barak, Interpretation in Law – Interpretation of Statutes 81 (1993) (Hebrew) (hereinafter: Interpretation in Law); HCJ 7754/14 Tzalul Environmental Association v. Petroleum Commissioner [24], para 9). The language is the framework for the work of the interpreter, and he may not breach it (HCJ 2257/04 Hadash-Ta’al Faction v. Chair of the Central Elections Committee for the 17th Knesset [5], p. 702). When the text tolerates different meanings, the interpretation that realizes its purpose should be chosen (Interpretation in Law, 85). In the present matter, as noted, Amendment no. 46 added the words “including his expressions” to sec. 7A of the Basic Law in regard to a candidate. According to the plain meaning, statements that can undermine the existence and fundamental principles of the state are sufficient to lead to the disqualification of a candidate from being elected to the Knesset, and there is no need for acts. That is also the interpretation that is consistent with the purpose of the section, which is intended to contend with those who seek to employ democratic tools in order to further anti-democratic objectives.

7.         Indeed, as the President noted, the Explanatory Notes to the bill state that the amendment was not intended to change the case law of the Court “according to which sec. 7A of the Basic Law should be used sparingly and strictly in order to protect the most vital interests of the state” (H.H. Knesset, 675). It is also important to explore the legislative history of legislation, through which it is possible to ascertain the legislative intent and purpose (Interpretation in Law, 161; CA 4096/18 Chacham and Or-Zach v. Assessment Officer [26], para. 20). However, I cannot concur with the position that the language of the amended provision is meaningless and that what has been is what will be. As has been said: “The legislative purpose, and certainly the legislative history, cannot give the law legal meaning that it cannot bear” (Interpretation in Law, 353). Indeed, there is nothing in Amendment no. 46 that would violate the principle that the provisions of sec. 7A of the Basic Law be interpreted narrowly. I also accept that the words of a candidate or the Knesset, as well as his deeds, be examined meticulously, inasmuch as disqualification remains an extreme act that should be employed only in exceptional circumstances, as has been held in the past (see, e.g., EA 561/09 Balad – National Democratic Alliance v. Central Elections Committee for the 18^th Knesset [2], para. 3 (hereinafter: the Balad case)). Nevertheless, that does not mean that the amendment does not affect the causes for disqualification established under sec. 7A of the Basic Law as we knew them in the past.

8.         First, one cannot ignore that in the past, the view was expressed in the case law of this Court that “expressions”, as opposed to “actions” do not fully fall within the compass of sec. 7A of the Basic Law. Thus, for example, in the Zoabi case, Justice H. Melcer noted: “An action in Israel’s sub-constitutional law does not generally include expression, and therefore, when the legislature sought to treat of expressing an opinion orally or in writing, it did so separately, alongside the action, or defined: “an action including an expression” (para. 2b of his opinion; and compare para. 121 of the opinion of Deputy President Rubinstein in the same matter). If, at the time, there was any doubt whether “expressions”, as distinct from “actions”, could be included under the provisions of sec. 7A of the Basic Law, then since the enactment of Amendment no. 46 of the Law, it has been expressly clarified. The legislature made itself unambiguously clear that the power of a word is as good as the power of an action. As was said: “Death and life are in the hand of the tongue” (Proverbs 18:21), “Does the tongue have a hand? This comes to teach us that just as the hand can kill, so the tongue can kill…” (Babylonian Talmud, Arakhin 15b).

9.         Second, although the line separating “expression” and “action” is not always clear, we cannot ignore that the interpretive principles outlined in the past in regard to the causes for the disqualification of a candidate placed emphasis on the candidate’s actions as against his expressions. Thus, for example, “actions” that must be given severe, extreme expression was spoken of (the Tibi case, p. 17). As for the third cause, which concerns support for armed struggle by a hostile state or a terrorist organization against the State of Israel, it was held that such “support” can be “material” or “political” (the Tibi case, p. 26; the Balad case, para. 7). Thus, Amendment no. 46 has the potential to change the criteria that were developed for the disqualification of a candidate, which have, until now, been based upon those established for the disqualification of lists.

 

The Probability Test

10.       Another matter that requires examination, and which should be addressed prior to diving into the appeals before us, is the question of the applicability of “the probability test” noted by the President, that is, whether the participation of a party or a candidate can be prevented from participating in the elections where it has not been proven that there is a probability that they may actually realize one of the causes established under sec. 7A of the Basic Law. This question already arose in the first Neiman case, which was adjudicated prior to the enactment of sec. 7A of the Basic Law, in regard to the disqualification of a list. In that matter, Justice A. Barak expressed his view that although the matter was not expressed in either the majority or minority opinions in the Yeredor case, the disqualification of a list is possible only when there is a “reasonable possibility” that the party’s platform will be realized in practice. However, after the enactment of sec. 7A of the Basic Law, it was clearly established in EA 1/88 Neiman v. Chairman of the Central Elections Committee for the 12^th Knesset [5], 188 (hereinafter: the second Neiman case) that:

In setting forth the principles of sec. 7A, the legislature did not require the existence of a clear and present danger, the probability of danger arising from the objectives and conduct of the party in question, or any similar test that looks to the connection between the condemned action and the possible results. Through this, the legislature changed the legal status until the enactment of Basic Law: The Knesset (Amendment no. 9).

            Thus, in enacting sec. 7A of Basic Law: The Knesset, the legislature abandoned the possibility of “the probability test”. In this regard, I join in the comments of my colleague Justice M. Mazuz. The provisions of the Basic Law contain no requirement for a reasonable possibility of the actual realization of the threat arising from the actions or platform of the list or its objectives (or from the actions of a candidate or his objectives, under the current wording of the section). There is firm support for the view that the matter was decided long ago in the second Neiman case, despite the questions that later arose in the Tibi case. In brief, I would note that I also find great substance in the view of Justice E. Mazza in the Tibi case (pp. 98-99) that making disqualification contingent upon the probability test could render sec. 7A devoid of all content, inasmuch as the more extreme, severe and outrageous the message, the less the probability of its actually being realized.

 

“Critical Mass”

11.       The case law of this Court has established that in order to approve a disqualification decision, the Court must have before it evidence that is “persuasive, clear and unambiguous” (the first Neiman case, pp. 250-251; the second Neiman case, p. 197). When the Court is convinced that such evidence has been laid before it, then the material thus constitutes the critical evidentiary “mass” required in this regard (see: the Tibi case, p. 42). This evidence can satisfy the Court as long as it is convinced of its truth, as the Court does in every matter given to its decision.

            This is not a quantitative but a qualitative test. If, for example, the Court is convinced by a single piece of evidence (and unlike this case in which there is a compendium of evidence) that can decide the matter in a certain direction, then it can base its decision thereupon. Only then will that single piece of evidence constitute a “critical mass”. As opposed to this, sometimes there is an accrual of many pieces of evidence whose force does not tip the scales and it will not constitute a “critical mass”. There is nothing actually new in this (see, for example, in the various proceedings: CrimA 7007/15 Shmil v. State of Israel [27], para. 22; CA 8742/15 Astrolog Publishers Ltd., v. Ron [28], para. 44; Yaakov Kedmi, On Evidence, Part IV, 1761ff. (2009) (Hebrew)). Indeed, the force of the evidence required for a decision changes in accordance with the category of the matter given to the Court’s decision. Sometimes, evidence that banishes all reasonable doubt is required. Sometimes, evidence that tips the scale of probability is required. Sometimes, “administrative” evidence of varying degrees is required. This, too, is not new (see, for example: CrimA 961/16 Alharoush v. State of Israel [28], para. 15; AAA 3326/18 A. v. Director of Firearm Licensing [30], para. 20). The present matter requires highly persuasive administrative evidence, and not necessarily a large amount of evidence. It is not the quantity that is decisive, but the quality.

            And now to the matter before us in the proceedings in which I disagree with my colleagues.

 

EA 1806/19 In the Matter of Cassif

12.       As noted, my colleagues decided not to disqualify Cassif’s candidacy for the Knesset elections, and I cannot concur. In my view, an examination of the material presented to us reveals that there is no room for doubting that Cassif’s statements clearly cross the legitimate boundaries defined in the framework of sec. 7A of the Basic Law. Thus, inter alia, Cassif published the following:

Uniting the democratic forces for a struggle against the Judeo-Nazism that is taking over our society is not enough, although it is certainly needed, there is a necessity for changing the methods, you don’t sing songs against fascism, you fight (report on Channel 20, May 22, 2016, quoting Cassif).

            In another report, he is heard saying that “in the Israeli discourse that the current Israeli government has created, killing Arabs is legitimate. This is how one descends into the abyss of what happened in Germany 80 years ago” (report of Channel 20 of April 12, 2018). Similarly, in regard to the Hamas, which is known to be a terrorist organization that is waging a murderous war of terror against Israel (and see: HCJ 7052/03 Adalah Legal Center for Arab Minority Rights in Israel v. Minister of Interior [31], para. 10 of the opinion of Deputy President M. Cheshin), Cassif is quoted as saying that the organization is a “political party” (report on Channel 20 of April 11, 2018). In addition, in an article on the Makor Rishon website from Feb. 7, 2019, it is reported that in the course of an interview with him, he stated that the State of Israel must not be a Jewish state. In addition to those statements, his clear, unambiguous statements expressed in a personal interview in the Ha’aretz supplement of Feb. 8, 2019, entirely fall within the scope of two of the causes for disqualification under sec. 7A: negation of the existence of the State of Israel as a Jewish and democratic state, and support for armed struggle by a terrorist organization against the State of Israel. Thus, Cassif presented an unadorned statement of his worldview, which includes the revocation of the Law of Return, 5710-1950 (hereinafter: The Law of Return) (p. 28 of the interview) and changing the symbols and anthem of the state (p. 26 of the interview).

            One cannot ignore that it is his position that The Law of Return should be revoked, as if it were a stumbling block rather than a law that expresses a supra-constitutional principle grounded in the Declaration of Independence, the Jewish people’s right to self-determination, and its connection to its homeland (see, for example: HCJ 7625/06 Rogachova v. Ministry of Interior [31], para. 28 of the opinion of President M. Naor; Ariel Bendor & Elichai Shilo, Israel as a Jewish State: Constitutional Significance, in Strasburg-Cohen Volume 160 (2017) (Hebrew)). Cassif’s clear statements fall completely within the bounds of statements that express the negation of the most nuclear foundations of the State of Israel as a Jewish and democratic state, as defined long ago in the Tibi case.

13.       However, these statements are dwarfed in their intensity in view of what Cassif stated about harming IDF soldiers. This is what he said:

Harming soldiers is not terrorism. Even in Netanyahu’s book on terrorism, he expressly defines harming soldiers or members of the security forces as guerilla warfare. This is absolutely legitimate according to every moral criterion, and incidentally, in international law as well. Nevertheless, I do not say that this is something wonderful, delighting, or desirable (p. 26 of his interview with Ha’aretz).

            We are concerned with matters that are most explicitly included in the cause for disqualification for support for armed struggle against the State of Israel. The fact that harming soldiers, in certain circumstances, is viewed differently from harming civilians under international law, or that it can be defined, according to Cassif, as “guerilla warfare”, does not change the fact that his statements explicitly express granting legitimacy and support for armed struggle against the State of Israel in accordance with the cause of disqualification under sec. 7A of the Basic Law. We are concerned with clear, unambiguous statements that cannot otherwise be interpreted or explained. There is “cold comfort” in that Cassif does not see such harm as “something wonderful, delighting, or desirable”.

14.       I do not find any real repudiation of these strong statements in Cassif’s statements before the Central Elections Committee or in the affidavit he submitted to the Committee, other than a denial of things attributed to him in the Makor Rishon newspaper (sec. 10 of the affidavit submitted to the Elections Committee), which, in any case, can be given only minimal weight in view of their being “second hand”. Cassif tried to place his extreme statements in a “political” context (pp. 29-30 of the transcript of the Elections Committee hearing of March 6, 2019), but this does not constitute a retraction of his harsh statements. In view of the severity and clarity of the statements, a general declaration alone, as Cassif expressed in para. 9 of his affidavit to the Elections Committee, is insufficient: “The request to disqualify my candidacy is a factual distortion and misleading interpretation of my words, and I therefore completely deny what is cited there”. It might have been expected that Cassif would clarify what that “factual distortion” was, and what misleading interpretation was given to the words. But other than this general, vague statement, what Cassif declared is insufficient to refute the existence of the solid evidence grounding the causes for disqualification.

            Cassif indeed notes, in a general way, in his affidavit that he “opposes all forms of violence against any person” (Cassif’s affidavit of March 3, 2019, para. 11). However, he in no way retracted the things he said in that interview – and not what he said in regard to harming IDF soldiers, in particular. On the contrary, in his affidavit, Cassif emphasized that in that interview in the Ha’aretz supplement he noted that he opposes harm to innocent civilians (ibid.). And as for harming IDF soldiers? Cassif’s silence is deafening.

15.       In his affidavit, Cassif reiterates his explanation that the statements attributed to him are, at most, “isolated” statements that “were made in order to sharpen a particular idea”, that the style of expression that included the term “Nazi” is not “characteristic” of him in general, that the statements were made in the heat of political debate, and that we are merely concerned with metaphor (para. 13 of the affidavit to the Elections Committee of March 3, 2019). However, it cannot be said that Cassif denies those expressions, retracts or denounces them, but at most, he explains them with various excuses. In the hearing before the Elections Committee, as well, Cassif did not express a clear, concrete disclaimer as to what he said, and in particular, I did not find any clear disclaimer of the statement that there is legitimate and moral justification for harming IDF soldiers. In the end, Cassif was kind enough to tell the Committee that he opposes violence (p. 34 of the transcript of the Elections Committee hearing of March 6, 2019). But that, as noted, is not enough. General statements according to which he rejects and opposes violence are insufficient in view of his sharp, clear statements in regard to harming IDF soldiers. According to Cassif’s approach, harming soldiers is not a form of “violence”. Moreover, when he was expressly asked in the Elections Committee hearing: “When you justify terrorist attacks upon IDF soldiers, is that not violence?” (ibid.), he did not provide a pertinent answer. In response to the question, he diverted to the causes for disqualification: “We are speaking here the language of the law, and we are talking about whether there are causes for my disqualification in light of Basic Law: The Knesset…”, while he repeated his general position that “I never even hinted at support for armed struggle or violent struggle at all. That is one cause that I do not meet”.

16.       Even Cassif’s repeated excuse that he made the statements as a “regular citizen” and not as a public representative, and that he would “not necessarily” use those expressions if he were elected to the Knesset (para. 13 of the affidavit submitted to the Elections Committee), do not work to his benefit. Cassif is currently being examined in regard to what he has already said, and upon opinions he has already expressed as a citizen. I would note in this regard that it is clear that the provisions of the law look to the future and do not seek to “punish” a candidate for his conduct in the past, but rather to contend with the fear of an elected official exploiting his status to perform improper acts (see: the Tibi case, p. 64). However, in order to answer the question whether the actions of the list or a candidate meet one of the causes for disqualification listed in sec. 7A of the Basic Law, the evidence that has accumulated in regard to that list or candidate must be examined, and this, naturally, often means before they were elected to the legislature. How can one accept the argument that Cassif should not be held accountable merely because we are concerned with statements that he made as a private individual? Every statement and action of a candidate (who has not served as a member of the Knesset in the past) is examined with consideration for the fact that the person concerned is a private individual seeking that the gates of the legislature be opened before him. Every such candidate is examined with consideration for things that he said before being elected as a public representative, while the accumulated material will always be from the period prior to his candidacy.

17.       Moreover, the argument by Cassif’s attorney that only “ideas on an intellectual basis” were concerned, cannot be of help. Statements supporting armed struggle against Israel and the negation of the existence of the State of Israel as a Jewish state cannot be explained away by saying that they concerned an “intellectual” debate (see, for example, the Tibi case, p. 70, which was quoted above in para. 4). This is all the more so in view of Amendment no. 40 to Basic Law: The Knesset of 2017, which made it clear, as noted, in accordance with the interpretive rules set out, that a candidate will be disqualified if his objectives or actions, “including his expressions”, constitute a negation of the existence of the State of Israel as Jewish and democratic, incitement to racism or support for armed struggle by a hostile state or terrorist organization against the State of Israel.

18.       As noted (in para. 4, above), the provisions of sec. 7A of the Basic Law create a distinction between the legitimate right of every person to express “ideas on an intellectual basis”, whatever they may be, from every platform (subject to very limited constitutional restrictions) and the statements of a candidate for election to the Knesset, where such a person seeks to move to the area of political activity. In accordance with the dictate of the legislature, theoretical ideas are examined from a different perspective when a person seeks to realize them by means of membership in the Knesset. Were Cassif’s statements examined as of an ordinary citizen, one might say that they are infuriating and enraging or that one should forcefully take exception to them, but they are protected as free speech. However, once Cassif sought to be elected to the Knesset, we must examine whether we are concerned with statements that express support for armed struggle by a terrorist organization against the state of Israel or whether they negate the existence of the State of Israel as a Jewish state, in the sense of denying its core foundations as established in the Tibi case. If the answer is positive – and as noted, I find it difficult to think otherwise – the candidate cannot rely upon the argument that the statements were made by him as “a private person” and that he is, therefore, exempt from answering for them. That is so in view of the purpose of sec. 7A, which, as noted, limits the use of the right granted by democracy, and in the present matter, the right to vote and to be elected, in order to prevent harm to the most basic, essential principles of its existence.

            In any case, once Cassif chose to clarify in his affidavit that he would “not necessarily” use the same expressions once elected to the Knesset (para. 13 of his affidavit), the excuse that the statements were made by him as a private individual cannot be maintained. Cassif is even unwilling to declare that those severe statements will no longer leave his lips as a public representative. Cassif himself made it clear that even after being elected, it is not necessarily the case that he will not repeat those things. In so doing, Cassif also declares that he refuses to accept the rules of the game – even if ultimately elected to the legislature (which actually occurred while these lines were being written).

19.       Indeed, not infrequently, a candidate will seek to “fix up” the positions that he publicly flaunted after he is threatened with disqualification, and in the framework of disqualification proceedings he will seek to explain that things are not what they seem. However, as a rule, a candidate’s request to deny his public statements – statements that often are those that paved his way to election to the Knesset and upon which the public trust in him was based – should be taken with a grain of salt. Dissociating from such statements in the disqualification proceedings may show those “corrected” positions to be stated solely to evade the verdict, as lip service, and not reflecting an authentic position (see: the opinion of Justice E. Rubinstein in the Zoabi case, para. 48). Cassif’s statements should be measured by the same criterion by which Ben Ari’s statements were measured. The two should not be distinguished. In a certain sense, Amendment n. 46 closed the gap between the evidentiary requirement for proving the causes for disqualification in regard to negation of the existence of the State of Israel as Jewish and democratic and support for armed conflict against the State of Israel and that of the cause of incitement to racism. Just as incitement to racism generally disqualifies by means of verbal statements (as also noted in para. 47 of the position of the Attorney general in EDA 1866/19), so too, the other causes disqualify through expression. If not identical, the evidentiary level of all the causes for disqualification should be similar.

            Just as Ben Ari’s statements disqualify him from running for the Knesset – despite his claim that he “is not a racist”, so Cassif’s words should disqualify him – despite his general claim that he “opposes violence” of any kind. The result should be identical for both.

20.       However, in certain circumstances, the gates can be opened to a candidate who retracts his statements. This, for example, if the candidate convinces that the evidence presented refers to old events, while declaring that he has changed his ways (that is the situation in the matter of Ben Gvir). A candidate who changes his ways is like a “penitent”, of whom the sages said: “In the place where penitents stand, even the wholly righteous cannot stand, as it is stated: Peace, peace upon him who is far and him who is near” (Babylonian Talmud, Berakhot 34b). Such a person is unlike one who “confesses but does not repent” who is likened to one who “immerses himself with a reptile in his hand”:

R. Adda b. Ahava said: To what can one compare a person who has sinned and confesses his sin but does not repent? To a man holding a reptile in his hand, for even if he immerses himself in all the waters of the world his immersion is useless for him. But if he throws it away, then as soon as he immerses himself in forty se'ahs of water, his immersion is immediately effective, as it is said: “He who confesses and gives them up will find mercy” (Babylonian Talmud, Ta’anit, 16a).

            A fortiori in the case of Cassif, who does not even confess his expressions. Even before the Elections Committee, and in his affidavit as well, there is no retraction of his words, nor a declaration that he has changed his path. The paltry statements that Cassif uttered do not come close to the vitriolic statements that he uttered from a public platform. On this it has been said: “He who covers up his faults will not succeed,” as opposed to “He who confesses and gives them up will find mercy” (Proverbs 28:13).

21.       The State of Israel, as a Jewish and democratic state, is obligated to defend itself and to act against those who oppose it. My colleagues defend Cassif, and it has, indeed, been said, “Judge your neighbor justly” (Leviticus 19:15). Relying upon the Gemara in tractate Sanhedrin, Rashi explains: “Judge your neighbor favorably”. However, the Siftei Chachamim [Shabbethai ben Joseph Bass (1641–1718)] adds: “That is to say, specifically when he is your neighbor judge him favorably”. In other words, when he behaves like your neighbor. In my opinion, there is no doubt that the terrible things said by Cassif do not allow us to judge him favorably, and they clearly and unambiguously meet the causes for disqualification that seek to protect the state against its destroyers and block their path to being counted among its legislators.

22.       To summarize this section, as noted, Cassif presented the core of his social and political approach in the interview with him and before the Committee, and his extreme, severe and unambiguous statements express dominant, central, core characteristics of his approach. We are concerned with persuasive, clear evidence that constitutes a “critical mass” that indicates support for armed conflict and terror against Israel, and negation of the existence of the State of Israel as a Jewish state. The force of the evidence is bolstered by the absence of clear, concrete repudiation of his statements by Cassif.

            In my opinion, all of the above unequivocally suffices to ground the causes for disqualification in sec. 7A in accordance with the criteria and proper interpretation as delineated above and that are long established by this Court.

 

EA 1876/19 In the matter of Balad

23.       Here too, as opposed to the view of my colleagues, I am of the opinion that that there is no room for doubt that the Balad list openly undermines the State of Israel’s existence as a Jewish and democratic state and openly supports armed struggle by a terrorist organization against the State of Israel.

24.       The evidence presented includes various statements and actions by members of Balad, some from the immediate past. Additionally, the petitioners requesting Balad’s disqualification referred to Balad’s activity in the past, and to the statements and actions of it former head – MK Azmi Bishara – and to the relationship between its activity and its current Knesset members to Balad’s former leader. In addition to all of that, it was argued that the “State of all its Citizens” bill (hereinafter: the bill) that the Balad Knesset members sought to present before the 20^th Knesset last June makes it unequivocally clear that Balad expressly denies the existence of the State of Israel as a Jewish State.

            In this regard, and even were I of the opinion that no significant weight should be accorded to the other evidence to which I will refer later, I am of the opinion – like position taken by the President in para. 58 of her opinion, with which I fully concur – that no one can deny that the bill expresses a negation of “nuclear characteristics” of the State of Israel as a Jewish state. Presenting the bill crossed the line sharpened in the Tibi case, which distinguished between one who supports a “state of all its citizens” in the sense of achieving civil equality and one who seeks to negate the minimal, core characteristics of the State of Israel as a Jewish state. Moreover, after reviewing the opinion of my colleague Justice Mazuz, I would add that, in my opinion, not only does the bill express a negation of “the nuclear characteristics” of the State of Israel, as noted, but even denies the existence of the State of Israel as “the State of the Jewish people in the national sense”. This, in reference to the identity of the state as a place where the Jewish people realizes its right to self-determination, as my colleague so well expressed in his opinion.

            In order to understand the consequences of presenting this bill in regard to examining the disqualification of the list, I will expand somewhat on the prior proceedings in the matter of Balad.

25.       The matter of Balad was addressed in the elections for the 15^th Knesset (EA 2600/99 Ehrlich v. Chair of the Central Elections Committee [33] (hereinafter: the Ehrlich case)), and in the elections for the 16^th Knesset (the Tibi case), as well as in the elections for the 18^th Knesset (the Balad case). Already in the Ehrlich case in 1999 – which addressed the matter of MK Azmi Bishara, who led Balad, along with the matter of the list (when the provisions of the law permitted only the disqualification of a list and not a candidate) – it was made clear that, on their face, Bishara’s statements at the time, declaring that the Jewish people does not have a “right to self-determination”, constituted a denial of the existence of the State of Israel as the state of the Jewish people. Indeed, it was ultimately found that Balad’s candidacy should not be disqualified despite coming “dangerously close” to the line that cannot be crossed that is defined in sec. 7A of the Basic Law.

26.       In the Tibi case (in the framework of which the matter of the party was examined in a manner identical to that of Bishara, given the “powerful” connection between them), it was found that the actions attributed to Bishara in regard to the negation of existence of the State of Israel as a Jewish state and in regard to support for armed struggle were at the heart of its purposes and constitute a dominant objective of its activity that constituted a political potential that was realized in repeated activity and with great force. However, persuasive, clear and unambiguous evidence against Bishara was not found, and thus not against the Balad list, when it was held that Bishara’s approach as to the State of Israel as a “state of all its citizens” “comes dangerously close to the possibility of negating the existence of the State of Israel as a Jewish state”, but it was not found that the “border had been crossed” (the Tibi case, p. 42). In addition. It was not found that there was sufficient evidence in regard to support of armed struggle, although there was some “doubt” in that regard (ibid.).

27.       Some clarification is required in this regard. In the Tibi case there was a difference of opinion as to the meaning of the phrase “a state of all its citizens” that appears in Balad’s platform. It was held that the principle of “a state of all its citizens” can take various forms, and that a purpose that sees Israel as “a state of all its citizens” does not inherently negate the existence of the State of Israel as a Jewish state. Thus, a person who acts to achieve the purpose of “a state of all its citizens” in the sense of guaranteeing equality among citizens is not the same as a person who employs that principle in order to infringe the rationale grounding the establishment of the state and thereby negates the character of the State of Israel as the state of the Jewish people (the Tibi case, p. 22).

28.       The minority was of the opinion that the evidence, taken in its entirety, showed that the expression “a state of all its citizens” served as a codeword for “abolishing Zionism, abolishing the State of Israel as the national home of the Jewish people, and abolishing the state as a Jewish state and replacing it with another state, if not more than that” (para. 2(b) of the opinion of Deputy President (emer.) S. Levin), and that striving for “a state of all its citizens” was intended to strip the State of Israel of Zionism and of its Jewish national character (para. D of the opinion of Justice E.E. Levi).

29.       As opposed to that, the majority, as noted, did not find that the meaning of “a state of all its citizens” in regard to Bishara “crosses the line” in regard to the negation of the existence of the State of Israel as a Jewish state. This, after finding that Bishara recognized the right of every Jew to immigrate to Israel, did not argue for the repeal of the Law of Return, did not deny the centrality of the Hebrew language as the language of the state, and did not oppose the holidays and symbols of Israel (also see: para. 54 of the opinion of President E. Hayut).

            In other words, in the Tibi case, as well, where it was found that striving for the objective of “a state of all its citizens” in regard to Bishara and Balad was close to the disqualifying boundary, a remedy was found in the form of non-negation of the core principles of the State of Israel as a Jewish state. The Court reiterated this position that the principle of “a state of all its citizens” in Balad’s platform does not ground a cause for disqualification in the Balad case. There, too, Justice E.E. Levy, dissenting, noted that in his opinion, the vision of Balad in regard to “a state of all its citizens” was nothing but a guise for the establishment of an Arab national state in all the territory of the Land of Israel.

30.       Thus, when examining the expression “a state of all its citizens” in the framework of Balad’s platform in the past, this Court was forced to cast about in order to discover what inhered in the concept and what meaning to give it. Where a doubt was found, the doubt worked in favor of approving the list, in view of the criteria established in regard to disqualifying a list. However, now that Balad has clarified – in the framework of dominant, significant, public and clear political activity – the significance of the expression “a state of all its citizens” for it, and the steps that it is willing to take in order to realize that vision, it can no longer be said that we are concerned with an ambiguous term. Now, following the presentation of the bill, it has been made absolutely, unambiguously clear that for this list “a state of all its citizens” means annulling the principle of return, denying the principle by which the state’s primary symbols reflect the national revival of the Jewish people, and denying the Hebrew language as the primary language of the state. It cannot now be said, by any criterion, that we are not concerned with the negation of minimal, nuclear elements of the State of Israel as a Jewish state, as held in the Tibi case.

31.       The fact that the bill was ultimately not brought before the plenum – only because on June 4, 2018 the Knesset presidium decided upon the drastic step of not approving its presentation to the Knesset – cannot be accounted to the list’s benefit, which argues that it is being retaliated against merely because it raised a theoretical “idea”. We are not concerned with just an “idea”, but rather with a concrete act – submitting a bill that sought to ground principles that undermine the existence of the State of Israel as a Jewish state (and also see in regard to expression by means of submitting a bill: the second Neiman case, p. 196). In view of this bill, I also find problematic the claim by the Balad list in its appeal that the requests for disqualification were not based upon a clear, direct statement, its publications, or official notices. What is a bill if not a “clear, direct statement” that expresses the values of the list and the principles that it pursues in the most simple, “clean” manner? What need do I have in looking for publications, official notices and so forth given the submission of a bill that seeks to undermine the most nuclear foundations of the state as a Jewish state? MK Mtanes Shehadeh’s “excuse” in his affidavit (affidavit of March 3, 2019 that was presented to the Elections Committee) that the bill was submitted only to “challenge the Nation State Basic Law and to hold a public debate on the issue” changes nothing in this regard or “kosher” this clear public step. On the contrary, even if the bill was submitted out of a sense of anger and grievance, I do not see how that could act in the list’s favor. Even if the members of the list presented the bill in a moment of rage, the saying goes: “By three things may a person's character be determined: By his cup, by his purse, and by his anger” (Babylonian Talmud, Eiruvin 68b). Rashi explains there: “In his anger – that he is not too hot tempered”. It is precisely when one is roiled and angry that a person is judged, and not when he is calm and at ease.

32.       Under these circumstances, no weight can even be given to what is stated in the affidavit that Shehadeh submitted to the Elections Committee that he and the members of Balad are committed to the principle of “as state of all its citizens” as reflected in the in Balad’s platform that was examined and approved long ago by this Court.  Balad itself clarified – in its own voice and not in the framework of quotes from newspaper articles that may be given to different interpretations – in the petition that it submitted to the Court (HCJ 4552/18) that the bill was consistent with its platform. In this sense, the claim that Balad now adheres to the platform that was examined and approved long ago – before the true nature of its vision of “a state of all its citizens”, which was recently publicly clarified and expressed as noted by Balad – cannot be accepted.

33.       That being the case, and in view of the background detailed above, I am of the view that there is no alternative but to say that by presenting the bill, and certainly in filing the petition (HCJ 4552/18) by members of Balad in which it was made clear that the bill was consistent with Balad’s platform, the Balad party crossed the line to which it had come “dangerously close” more than once in the past. In this context I would note that presenting the bill was an expression of real, substantial, clear parliamentary activity that, in my view, cannot be dismissed as a one-time or sporadic matter, as is the opinion of my colleague Justice Amit.

            The argument presented by Balad’s attorney that the matter of the bill was not raised before the Elections Committee but first and unexpectedly in the position of the Attorney General submitted to this Court, and that he is therefore unprepared to address it, cannot be accepted. Not only was this matter expressly raised in the framework of the disqualification request presented to the Elections Committee (paras. 17-24 of the Likud faction’s request to disqualify Ra’am-Balad), and not only was it raised in the hearing before the Elections Committee (p. 4 of the transcript of the hearing of the Elections Committee of March 6, 2019), but it was also addressed on the merits by Balad’s attorney, who raised the same claim made in that hearing that he raised before us that this is retribution merely for raising an “idea” (p. 35 of the transcript off the hearing before the Elections Committee of March 6, 2019). Moreover, the Ra’am-Balad list also expressly referred to the matter of the bill in the appeal that it submitted to this Court (paras. 23-25 of the appeal in EA 1876/19).

34.       In any case, beyond the fact that submitting the bill (together with what was stated in the petition) significantly and unambiguously grounds the said cause for disqualification, this bill does not exist in a vacuum. The bill is not the only evidence under consideration, although it would appear to be decisive evidence in and of itself. Additional evidence was presented that when added together points to a collection of evidence and a “critical mass” that demonstrates that we are concerned with a list that has raised the banner of open struggle against the foundations of the State of Israel.

35.       In this framework I would note that I do not believe that the fact that Balad’s activity and members were examined in the past renders addressing them now superfluous. Are we not required to examine the matter of Balad in accordance with the up-to-date material presented to us, which also casts light upon what was presented in the past? When the matter of Balad was examined in the past, the Court had before it the material that had accrued up to that date. Given that additional evidence has accrued in the interim, which might have led the Court to a different conclusion at that time, we cannot continue to rely upon conclusions drawn in the past from the material presented then while ignoring the updated material.

36.       Given the above, an examination of the entirety of the evidence in the matter of Balad and its members shows that this time it has gone too far. Even if in the past, the material presented in regard to it and its members came close to the bounds defined in the Basic Law but did not cross them, today the situation is different. Indeed, this Court found that MK Zoabi’s participation in the Marmara flotilla did not disqualify her from standing for election to the Knesset (the Zoabi case). However, I believe that weight should be accorded to her actions in examining the disqualification of the list of which she is a member (even if not in a “realistic” place), and in view of the additional evidence that has accrued in regard to that list since the Zoabi case. This is also true in regard to the Bishara matter, which was addressed in the past in the Ehrlich case and the Tibi case. Only later, as was also noted in the matter of Balad (in which the matter of Bishara was not addressed as he had left the country), it became clear that Bishara was suspected of serious security offenses pursuant to which he was forced to flee the country. Therefore, in examining the current evidentiary foundation in regard to the list in its entirety, weight should also be given to this matter (even though Bishara no longer stands at the head of the party). In view of the above, can one imagine that if the matter of Bishara were examined after new material came to light that pointed to serious suspicions of committing offenses, this Court would rely upon its findings in the Ehrlich case and the Tibi case without examining whether the new evidence added to the material that was examined and remained in “doubt”?

            The actions of those has since been compounded by the criminal-security related activity of MK Basel Ghattas, a member of the party who was convicted in 2017 of smuggling cellphones and other items into a prison in which security prisoners were held, as well as the conviction of another MK who was a member of the party, Said Naffaa, for the offense of contact with a foreign agent in 2014, after meeting with the deputy secretary general of the Popular Front (see the denial of his appeal in CrimA 6833/14 Naffaa v. State of Israel [34]), which was not considered in the past in the matter of the entire party.

37.       Added to all of that was the connection affirmed by Balad to its erstwhile leader Azmi Bishara in the course of the annual convention of the Ra’am-Balad party in Nazereth, when it deemed it appropriate to send him a “blessing”. And note that it was made clear to the Elections Committee that this matter was not denied (pp. 29-32 of the transcript of the Elections Committee hearing of March 6, 2019). By that, the present Balad list also declared that it is the successor of the person who led it in the past. It should be emphasized that we are not concerned only with a relationship with Bishara that justifies disqualifying the list (compare: the Balad case, para. 20), and I am not unaware that of the list’s argument that it cannot be held responsible for the actions of MK Naffaa, who has not been a member of the Balad party since 2010, or the actions of Zoabi, who is in an “unrealistic” place on the list. We are concerned with an aggregation of additional, compounded evidence over the course of years that indicates a significant, persuasive, and unambiguous tapestry in regard to meeting the causes of disqualification. An additional connection to Bishara was also presented in the article in the Ha’aretz newspaper of Aug. 18, 2014, according to which then members of the list – Jamal Zahalka, Hanin Zoabi, and Basel Ghattas – met with Bishara in Qatar, which was not denied by Shehadeh (pare. 8 of Shehadeh’s affidavit to the Elections Committee). To all of this is added the current conduct of the members of the list in the form of giving unambiguous, blunt support for terrorist actors who were convicted and incarcerated, whom the current head of the list, MK Shehadeh, refers to as “political prisoners” (article in the Makor Rishon newspaper of Jan. 13, 2019). This is compounded by unambiguous statements in a recorded interview (on Galei Yisrael radio) in the course of which Shehadeh stated in his own words that “every struggle against the occupation is legitimate” and that “we support every popular struggle”.

            Thus, the entirety of the clear, unambiguous evidence – together with the most significant piece of evidence concerning the submission of the bill – shows that the dominant characteristics at the center of the list’s parliamentary and extra-parliamentary action are directed at infringing protected values. The list vigorously acts to realize its objectives through actions and verbal statements.

38.       Under these circumstances, the list’s argument that part of the evidence concerns persons who are no longer candidates of the Ra’am-Balad list for the elections to the 21^st Knesset can be of no assistance. The candidates of the 21^st Knesset sought, of their own initiative, to join a list that has a “rich” past as detailed above. We are concerned with people who seek to join an existing list based upon the “reputation” that it has acquired, the ideology that is its banner, its purposes and actions that were expressed on various public platforms, and of course, its supporters. The candidates’ distancing themselves from the action of that list – at least in regard to the matter of the bill that was submitted during the term of the 20^th Knesset – cannot be accepted. Beyond the fact that evidence was presented that indicates a real connection to its erstwhile leader Bishara, we cannot countenance the argument that the current members of Balad do not stand behind Balad’s platform that Balad itself declared in the 20^th Knesset was consistent with what was stated in the bill that was submitted. The claim that we are concerned with “a new generation” cannot be accepted when it concerns the disqualification of a list regarding which clear, unambiguous evidence was presented regarding the meeting of a cause for disqualification.

39.       According to the position of the Attorney General as expressed before us (in sec. 44 of his written position as well as in the oral arguments – despite the fact that he said absolutely nothing on this matter in the written position presented to the Elections Committee), there is nothing in the bill that would lead to the disqualification of the entire list because we are concerned with a joint list of Ra’am-Balad and not of Balad alone. In my opinion, the Ra’am-Balad list cannot be approved for this reason alone. It is difficult to accept the argument that the existence of a cause for disqualification can be “healed” by joining one list to another in a joint list. In view of the purposes of sec. 7A of the Basic Law, the combining of lists cannot confer “immunity” or a defense to a party that has deviated from the path. This, while undermining the fundamental principles defined in the framework of the Basic Law, is not repaired by adding a party. The Sages taught us the principle: “Woe to the wicked person and woe to his neighbor,” and “Blessed is the righteous person and blessed are his neighbors,” which is derived from the arrangement of the Israelite encampment in the desert. Thus, the tribe of Reuben, which encamped beside the members of Kehat, was punished with them in the dispute with Korach and his followers, while the tribes of Judah, Issachar, and Zebulon, which encamped beside Moses, Aaron and his sons, became great Torah scholars (Numbers 3:29 and Rashi ad. loc.). If that is so for the arrangement of an encampment and the placement of neighbors, all the more so when we are concerned with a party joining with another. Joining together is premised upon a shared ideological, political, and conceptual platform. As the prophet Amos said: “Can two walk together, unless they are agreed?” (Amos 3:3). We cannot accept the argument that if there is a cause for the disqualification of the Balad party, the very joining of Ra’am suffices to remedy it. The joining of the Balad party with the Ra’am party does not purify it, but rather it contaminates the Ra’am party that tied its fate with it in a joint list. The “pure” does not purify the “impure”, but rather the “impure” corrupts the “pure”. It would be better were parties to act cautiously when choosing to join parties whose extremist course is on the boundary (and certainly when it crosses the boundary) defined in the Basic Law.

            To summarize, in my opinion, both in the matter of Cassif and in the matter of the Ra’am-Balad list, “all else has failed” even according to the strict criterion of my colleague Justice Sohlberg.

40.       In conclusion, my colleagues’ interpretation in regard to the disqualification of a single candidate and in regard to the disqualification of a list on the cause of support for armed struggle against the State of Israel and the cause of denying the existence of the State of Israel as a Jewish state render the words of the legislature merely theoretical. The Talmud (BT Sanhedrin 71a) addresses the elements of the offense of an individual – the stubborn and rebellious son, and of a group – the idolatrous city, which have committed certain offenses. However, the Tannaim interpreted the elements of the offenses so rigidly that that the Talmud concludes: “There never was and never will be a stubborn and rebellious son. And why was it written? So that you may expound upon it an receive reward”, and: “There never has been an idolatrous city and there never will be one. And why was it written? So that you may expound and receive reward” (a similar expression also appears in regard to Job, of whom it was said: “Job never existed and was never created, but was a parable” (BT Bava Batra 15a). However, alongside this view we find the view of Rabbi Yochanan, who was of the opinion that these were not merely theoretical matters, and who states in regard to the stubborn and rebellious son, “I saw him”, and in regard to the idolatrous city, “I saw it”. We are concerned with practical matters that were and will be in the future. By analogy, the above is applicable to the matters before us, as well.

            And so I say loudly and clearly: “I saw him,” “I saw it,” and we cannot turn our eyes away from seeing.

 

Justice G. Karra:

            I concur in the opinion of President E. Hayut and with the opinions of my colleagues U. Vogelman, I. Amit and E. Baron on the matter of the inapplicability of the probability test to the cause of disqualification for incitement to racism under sec, 7A(a)(2). I would add that the accumulated critical mass of statements and actions detailed at length in the President’s opinion thoroughly ground the conclusion that incitement to racism is a dominant, firmly rooted, and central purpose of Ben Ari’s doctrine. The escalation of racist statements over the last years leaves no possibility for accepting his artificial explanations, not even to the extent of raising doubt as to the intention and purpose of the statements.

            From among Ben Ari’s racist statements and actions, I would like to spotlight a dark, severe act mentioned in para. 44 of the President’s opinion, that is lost in the large catalogue of his inciteful publications. I refer to the act of tearing up the New Testament and throwing it into the waste basket when Ben Ari was serving as a member of the Knesset in the years 2009 to 2013. It is an act that has nothing to do with incitement against Arabs, but it serves to show us that Ben Ari’s racist worldview, which he has espoused over the course of years, is much broader and deeper than incitement against Arabs, whom he sees as enemies. It would appear that this racism is deeply rooted in hatred of the “other” and the different, per se.

            Approving the candidacy of a person who incites to racism and hatred of the other would taint Israeli democracy, and therefore, a normative statement is required saying that such an inciter must be relegated from the Israeli Knesset.

 

Justice N. Hendel:

1. I concur in the clear, comprehensive opinion of my colleague President E. Hayut. I would briefly sharpen what I see as the main points in regard to each of the actors – candidates and lists – examined in the present proceedings, regarding which there are disagreements among the members of this panel. I will also present my position on a number of general issues regarding which questions or doubts were raised – the probability test, the consequences of two parties running jointly in regard to the existence of a cause for the disqualification of one of them, and the interpretation of the cause “denial of the existence of the State of Israel as a Jewish and Democratic state”.

The relationship between law and elections can be likened to two pillars. One pillar says: “This is democracy’s holiday. An equal vote for every citizen. The people must have its say. The Court does not – and must not – take a stand as to the desired results”. The other pillar says: “Elections without law may distort democracy. Not a day of celebration but of mourning. Bribery, bullying, or a regime takeover of the elections. The answer is the open eyes of the law as written, expressed, and intended. There must be rules even for the smallest details: the timeframe must be strictly observed; the ballot box must be accessible; who can vote and who can be elected. Maintaining the laws is also vital to democracy”. While the first pillar maintains a distance between the law and the elections, the second requires involvement and supervision. Is there a contradiction between the two? I believe that the answer is in the negative, and it is unsurprising. The two pillars sing the praises of democracy together. In other words: there is no contradiction between democracy and the Court’s supervision over the rules. On the contrary, the Court acts to advance democratic principles by virtue of the authority conferred upon it by the legislature.

            Democratic elections are not self-evident. History gives context. In the past, and for a very long period, change of regime was achieved by military coup or the death of the autocratic ruler. Democracy changed the rules. Not power but election. Decisions are made not by the powerful but rather every citizen has equal power. That is the aspiration, and it must strictly be put into practice. It is not a simple task. After all, the voice of the single voter is not, of itself, strong in comparison to the regime. Democracy strives to preserve its character and not lose it in the course of elections. This gives rise to the role of the Court and the proximity of the pillars.

2. Israeli law establishes when a candidate or a list should be prevented from participating in the elections due to their objectives, actions, and expressions. Section 7 of Basic Law: The Knesset presents the substantive test and the procedures for preventing a list or candidate from participating in elections for the Knesset. This section, and section 63A of the Knesset Elections Law [Consolidated Version], 5729-1969, establish the procedures for this. The substance is defined by three causes for disqualification:

 

(1) negation of the existence of the State of Israel as a Jewish and democratic state;

(2) incitement to racism;

(3) support for armed struggle by a hostile state or a terrorist organization against the State of Israel.

The procedures are that when the Central Elections Committee for the Knesset Elections prevents the participation of a candidate, the approval of a nine-judge panel of the Supreme Court is required. It is not an appeal but an approval proceeding. The law chose to introduce the Court into the proceedings. It is not post facto judicial review but an ex ante decision. For the prevention of the participation of a list or the approval of a candidate of a list – there is an appeals process.

We addressed the tension between the two pillars presented. Each holds great power in our legal system, and thus the sensitivity required in the course of moving between them in practice and in real time. The path chosen by this Court is one of caution and self-restraint before it prevents the participation of a candidate or a list. Doubt acts in favor of the candidate. This is the consistent approach of the case law in election matters, as explained by my colleague the President. It is interesting to turn to another area of law in which doubts wields great power. In criminal law, a person can be convicted if the charge is proved beyond reasonable doubt. The reason for this is the recognition of the regime’s power to taint and punish the individual. As opposed to this, in Knesset elections, the power of doubt lay in a different consideration – the role of the voter in choosing the candidate and the list it prefers. This Court does not eagerly intervene in election matters. On the other hand, the law requires it to do so in the appropriate circumstances. Just as the will of the electorate must be honored, so too the will of the legislature in such matters. The compromise – or more precisely, the proper balance – is to employ the law only to prevent candidacy in exceptional cases in which, for example, the doubt is not of substance and is not rooted in reality. This rule is intended to permit the voter to express its position on the matter within the four cubits of the ballot box. As opposed to criminal law, in which the court establishes facts in regard to the defendant’s acts and intentions – in the present matter, we look not only backward but forward as well: is the candidate or the list, at the time of the elections, expected to act contrary to the causes enumerated in the law if elected – but in the present and not necessarily in the past. We are thus concerned with a certain evaluation in regard to the future.

However, in the exceptional case in which the candidacy of a candidate or a list meets the following criteria: the cause is a dominant characteristic of the list or the candidate; there is clear, unambiguous evidence of the cause; there is active conduct, including expression in the case of a candidate, for realizing the wrongful objectives; there is a critical mass of highly credible evidence (see the detailed description in para. 16 of the opinion of my colleague the President). Only if these conditions are met is there the necessary certainty to justify the result of disqualification. In the background stands the right to vote and to be elected. That underlies the democratic foundation of elections. And note that the right to be elected has direct consequences for the right to vote.

Another aspect of the matter is remorse or a candidate’s recanting an objective or activity related to one of the constitutional causes. The reason is self-evident. The decision is not personal or punitive but rather institutional and preventative. In other words, its purpose is to prevent an inappropriate actor from becoming a member of the next Knesset. Of course, we are not concerned merely with a declarative test. There must be an examination of whether there are grounds to conclude that the declaration is sincere. Or more precisely – that the declaration is not sincere. Of course, there is a possibility that a candidate may not live up to his declarations. This is not a danger that would justify expanding the list of disqualified actors. If a candidate or list does not live up to its expectations, there are “sanctions” and other means for contending with the matter, whether in the course of the Knesset’s term or in the elections for the next Knesset.

3.         Two points to conclude the general sections. The first concerns the dissenting opinions of my colleagues. I have read the opinions of my colleagues Justice N. Sohlberg and Justice D. Mintz. My colleague Justice Sohlberg is of the opinion that no one should be prevented from participating in the elections for the 21^st Knesst, while my colleague Justice Mintz is of the opinion that along with Michael Ben Ari, Ofer Cassif and the Ra’am-Balad list should be prevented from participating in the elections for the Knesset. In my opinion, and pursuant to the above, Justice Sohlberg’s approach might lead to the non-disqualification even of candidates who clearly meet the causes for disqualification. This, while making even the strict case-law tests weighed prior to preventing the participation of a candidate or list in the elections more strict. As for the approach of my colleague Justice Mintz, in my view, his approach might lead to over-disqualification of candidates and lists from both sides. It would appear to me that the path taken by the case law in the past and in the present embraces both of the pillars presented above. Disqualification is imposed cautiously and only exceptionally.

            The second point is that of the symmetry test. My colleague Justice Sohlberg presented a statement by MK Michael Eitan in which he asks: “Where is the symmetry?” I agree with this question and would only like to sharpen the point. Symmetry does not have to be expressed in the final result, but rather in the application of equal criteria. Aspiring to symmetry in order to balance the results is a quasi-political consideration that the Court cannot adopt. I will allow myself to say that reading the opinions of my colleagues – of the majority and the minority – shows that the conclusions were based upon a legal approach and the examination of the evidence, and not upon any desire to maintain equally balanced results.

            Armed with these tools, I will conduct an individual examination of the relevant actors – Michael Ben Ari, Ofer Cassif, and the Ra’am-Balad list.

4.         Michael Ben Ari: The relevant cause in the matter of Ben Ari is “incitement to racism”. We are concerned with some forty different statements, most of which were uploaded to the Facebook page of “Otzma Yehudit with Michael Ben Ari”, such that the matters cannot be denied. Indeed, Ben Ari does not deny them. Most of the material dates from the year preceding the elections. My colleague the President presented the relevant statements (paras. 38-41 of fer opinion). It makes for difficult reading. What was presented suffices, and there is no need to present it again, Comparing the statements with the language of the law raises the question of what is the test for “incitement to racism”?

            I will begin with the term “incitement”. Not racism but incitement to racism. The hand or mouth of one and the hearing ear of the other. In other words, we are not concerned with personal views that the candidate keeps to himself. The opinions must be expressed in order to incite to racism. In addition, my colleague Justice M. Mazuz referred to the probability test. In his opinion, that test should not be applied to the causes under sec. 7A of Basic Law: The Knesset. I agree with his conclusion and reasoning. The language does not support the application of such a test, and such is also the purposive interpretation. Such a test would be too speculative and very difficult to apply at the time of the elections. Additionally, the basis of the causes for disqualification is not necessarily the prevention of a real, concrete threat to one of the protected values, but rather clearly expresses not granting legitimacy to lists or candidates who adopt the approaches set out in the causes. In summary, I accept his conclusion that “we are concerned with causes of ‘conduct’ not ‘results’” (para. 2 of his opinion).

            Now to the question of what constitutes “racism”. My colleague the President addressed, inter alia, the aspects of hatred, hostility, persecution, degradation, and humiliation (paras. 25-32 of her opinion). In regard to Ben Ari’s candidacy, I will say: there is no need to establish the minimal threshold for disqualifying a candidate on the basis on incitement to racism. It suffices to find that in this case, the candidate exceeded the threshold by a wide margin. His statements seek to influence conduct. And note that the lack of a need to prove the elements of the probability test does not contradict the fact that the aspiration to influence conduct in practice reinforces the ground for disqualification. In his statements, Ben Ari espouses the denial of civil rights to the Arab public. So in regard to participating in public tenders and so in regard to their ability to live in cities. He supports their collective deportation in certain circumstances, and employs violent imagery in regard to that community, including shooting. The evidence is very substantial, unambiguous, and dominant in his doctrine.

            In his affidavit to the Elections Committee, Ben Ari argues that he is not a racist, in that he accepts that every person – including the Arabs – are created in God’s image. Only then does Ben Ari proceed to the loyalty test. He is not against Arabs because of how they were born, but because they failed the loyalty test. Moreover, the overwhelming majority of Arabs are not loyal. That “overwhelming majority” was defined in various statements: from 99% to a few who can be counted on the fingers, and Ben Ari never met a loyal Arab. Thus, they have all become enemies. This is the fallacy at the base of incitement to racism. As President Shamgar held, racism is not just a matter that derives from the biology of the other (EA 2/84 Neiman v. Chairman of the Central Elections Committee for the 11^th Knesset [5], 191-192). Racist views can also be examined in accordance with theories, conclusions, and factors that arose after a person’s birth and not upon the DNA that characterizes a group of the population. Not just genetics but epigenetics. Ben Ari did not explain the meaning of the “loyalty test” – what are the criteria of this test, when does one fail it, and how is it that with the exceptions of a very small number of individuals, all Arabs belong to the disloyal group. We are concerned with very severe matters that are not based upon facts but upon a circular conclusion. The results are harsh. An Arab is presumed to be an enemy who must be dealt with. This, by means of denial of rights, deportation, or the possibility of violent treatment. For example, it was stated that anyone who dares to speak against a Jew doesn’t live. He doesn’t live, but rather “a firing squad kills him, he is done away with”; that the “murderers” should not be employed, also in reference to the Arab residents of Israeli cities; that affirmative action should be rescinded in view of the “treasonous” and “murderous” character of Arabs; that Arabs are a “murderous people, a murderous nation”; and that the village from which a terrorist went to an “airport” should be uprooted and its residents “flown” to other countries.

5.         I will clarify the matter from another perspective. One may ask why these particular causes established in the law were chosen. The cause of support for armed struggle against the state is clear and requires no explanation. The cause of denial of the State of Israel as a Jewish and democratic State was intended to defend the existing foundations of the state. As for incitement to racism, we are concerned with a desire to deny the legitimacy of a group. In a varied, multi-group society like that of the State of Israel, this harms the nature of the society. This is striking when we are concerned with some twenty percent of the population. It saddens me to say that reading Ben Ari’s positions – and the reader can read paras. 38-41 of the opinion of my colleague the President – leads not only to racism in the form of humiliation and hatred, but also to severe acts that might undermine social order or create discriminatory law in regard to the foundations of civil rights, including the right to remain a citizen of the state. This is not due to the actions of the group, not due to criminal offenses perpetrated or plans to do harm, but because they do not meet the conception of a proper minority as Ben Ari understands it. By that, I am not finding that he has committed a crime, but there are special requirements in regard to lists and candidates for the Knesset. Particularly in a system in which a representative often represents a specific group, we must make certain that even if he does not fight for the rights of the group, he cannot fundamentally deny the legitimacy of the other group and its right to elementary rights. And all the more so, harm and violence lacks any legitimacy.

6.         The conclusion from all of the above is that this is an unambiguously extreme case. And note well, Ben Ari did not express remorse, but rather embraced his position while explaining that he is not a racist and does not reject Arabs on the basis of their birth. To clarify the picture, let us compare him to Advocate Itamar Ben Gvir and to former candidate Baruch Marzel. It can be assumed that the three share a similar ideology, in that they ran together on the same list. However, this Court refrained from disqualifying Marzel and Ben Gvir. The decision not to disqualify Ben Gvir in these proceedings was unanimous. What difference is there between him and Ben Ari, who was disqualified by an eight-judge majority? It would appear that the tests of the strength of the evidence, its extent, quality, and unambiguity led to that result. But we would note one additional criterion: expressing remorse. Both Marzel and Ben Gvir informed the Court that they intended to act in accordance with the requirements of the law, including the causes for disqualification that it establishes. Even if they behaved differently in the past, they declared that that is how they would conduct themselves. They understood and internalized the qualifying conditions for Knesset candidacy. Ben Ari was not a partner to that choice. He continues to support the views that he expressed. We are not concerned with some technical defect or lack of comprehension. Just as we must respect the manner in which Ben Gvir and Marzel presented their arguments at the moment of truth, so we must respect Ben Ari’s position that justifies his disqualification. My colleagues spoke of how, due to its history, the Jewish people in particular must be sensitive to statements like those expressed by Ben Ari. In my view, we should add that it is not just the history of the Jewish people, but also its faith.  But truth be told, there is no need for that. In these circumstances, there is not even a need to demonstrate the matter by a thought experiment in which Ben Ari would express his views in another country against Jews.

7.         Ofer Cassif: The disqualification request points to two causes that can bar his participation in the Knesset elections. The first is “negation of the existence of the State of Israel as a Jewish and democratic state” and the second is “support for armed struggle by a hostile state or a terrorist organization against the State of Israel”. The evidence presented against him relies upon four publications, the central of which is an interview he gave to the Ha’aretz newspaper in February 2019. It would appear that my colleague Justice Mintz addressed both causes together, but there is a difference in the scope of the evidence and in Cassif’s explanations in regard to each cause, which requires that they be addressed separately. My colleague presented Cassif’s case as so clear as to leave no doubt, and according to his approach, there is no possibility of arriving at a different result.

            Below, I will sketch the general outline of why I hold a different view. The question in regard to Cassif, as for every candidate, is whether there is justification for preventing him from being elected as a member of Knesset in view of the causes established in the Basic Law. As I explained above, the matters are examined in a particular period of time, with a view to the future, and in regard to the candidates functioning in the legislature if he be elected. Past statements and actions may serve as the evidentiary foundation in regard to a position in the present and in the future. The purpose is not to punish improper actions and statements, but to ascertain whether the candidate constitutes an exception that justifies barring his participation in the elections. Cassif said things in the past, although not with great frequency and consistency, that would require him to explain why he should not be prevented from participating in the elections. Cassif’s answer to this is clear, consistent, and divided into three parts: one, in regard to the possibility that he supports armed struggle by a terrorist organization against the State of Israel, is that he does not support violence, not in the past and certainly not at present. I believe that an examination of the matter, as I will explain, supports that conclusion. Even if Cassif spoke harshly, there is a lack of a foundation proving that he supports violence – certainly the foundation needed to prove that he supports armed struggle by a terrorist organization against the State of Israel.

            The second part of his answer concerns the possibility of negating the State of Israel as a Jewish and democratic state. In this regard, he does not deny that he has made statements in the past against various symbols of the state and against the Law of Return, but he declared that he accepts the platform of his list – Hadash-Ta’al – and does not, in that or any other frameworks, act or call for the annulment of the symbols or the Law of Return. He accepts the parliamentary rules. In other words, not only is this not a case of a dominant purpose, but rather there is no such purpose at all. As I explained above, the Court has consistently granted weight to a change of position and a declaration in regard to an absence of intent to act or express oneself contrary to the causes enumerated in Basic Law: The Knesset. As noted, this consideration, applied mutatis mutandis to other causes, is what allowed the candidacy of Baruch Marzel in the past, as well as that of Itamar Ben Gvir at present. It his unwillingness to follow that path that stands in Ben Ari’s way.

            The third part concerns various statements by Cassif that compare the State of Israel and the members of its government to Nazi Germany. My colleague Justice Mintz gave weight to those statements. We are concerned with shameful statements that do no honor to one who makes them, and certainly not to one who seeks election a member of Knesset. It were better had they never been said, and one hopes that if Cassif is elected to the next Knesset, he will refrain from acting in this manner. However, as my colleague the President noted in her opinion – and this is the third part of Cassif’s response – those statements do not fall within the scope of any of the causes enumerated in sec. 7A, and to my understanding, the Court cannot take them into account in examining the disqualification of a candidate. In this regard, I would note that the opinion of my colleague Justice Mintz also referred to Cassif’s statement in his affidavit (para. 13) that he would “not necessarily use those expressions if elected to the Knesset” (emphasis added). According to his approach, the absence of an undertaking by Cassif in regard to his future conduct does not work in his favor. However, and see paras. 12 and 13 of the affidavit, it appears that this statement referred to the shameful statements mentioned above, and not to statements related to the causes enumerated in the law, such that I do not think that this can be held against him in this proceeding.

            In view of the severity of the cause of supporting armed struggle by a terrorist organization against the State of Israel, it would be proper to present Cassif’s own words as stated in his affidavit to the Elections Committee. He affied that “I have never called for violence, and I am opposed to violence as such against any person”. As my colleague the President noted, Cassif explained to the Elections Committee that “I never supported violence, I always expressed opposition to violence, I belong to a party that has always rejected violence […]” and stated further on that “I rejected, and I reject, and I will reject, and I never even hinted at support for armed struggle or violent struggle at all”. In regard to the definition of the term “terror” as opposed to “guerilla warfare” in all that concerns harm to soldiers, Cassif’s attorney emphasized in the hearing before us that the statements were made in the course of an academic debate on the subject and that one should not infer that he expressed support for harming soldiers from the presentation of his position in the matter:

He said that he has a dispute with the term “terror” even in the UN there is a dispute about this word. He wrote this and teaches his students. The dispute about the Prevention of Terror Ordinance then was a debate. Therefore, what he says about this matter of who is or isn’t a terrorist from an intellectual and academic perspective is debated […] these terms that he employs are not foreign to the Supreme Court and not to the international humanitarian court. Not one word here is a call [to terror] (p. 9 of the transcript).

            Even if one does not agree with the definitions adopted by Cassif, and even if they cause indignation, in the context presented to us they cannot be taken to imply, of themselves and certainly not given the entire collection of statements and explanations, support for armed struggle by a terrorist organization against the State of Israel. It is sad that his words show, in my opinion, a certain sense of contempt for the lives of IDF soldiers and complacency in regard to many citizens who have lost what was most dear to them in the name of defending the homeland. In such matters, a member of Knesset and a candidate for election as a member of Knesset is expected to act with sensitivity. But there is a gap between such a failing and the existence of a cause to prevent participation in the elections.

            In summation, I would say as follows. In my opinion, there is no basis for attributing to Cassif statements that support armed struggle by a terrorist organization against the State of Israel or the negation of the existence of the State of Israel as a Jewish and democratic state. As noted above, there are four conditions that must be met in order to bar a candidate from participating in the Knesset elections: the cause for disqualification constitutes a dominant feature; the existence of clear, unambiguous evidence of the existence of the cause; activity, including expression, for the realization of the wrongful purposes; a critical mass of highly credible evidence. In my opinion, there is no basis for attributing to Cassif expressions of support for armed struggle by a terrorist organization against the State of Israel. He made it clear that he always was and always will be against violence. As for his positions on the symbols of the state and the Law of Return, he declared that he abides his party’s platform. In regard to both causes, the evidentiary foundation is sparse, certainly not unambiguous, and lacks the requirement of dominance or activity for the realization of the purpose. In other words, both independently and cumulatively, the evidentiary foundation against him does not meet the four tests.

8.         Ra’am-Balad: The proceeding in the matter of the Ra’am-Balad list focused upon the Balad party. It is argued that the central piece of evidence for disqualifying the list in these elections is the Basic Law: A State of all its Citizens Bill that Balad sought to propose to the 20^th Knesset. The bill was submitted to the Knesset presidium, but that body did not approve its presentation before the Knesset.

            The bill was of a general character. For example: “The state is a state of all its citizens, in which the regime is democratic; the state’s regime is based upon the values of the dignity of the person, his liberty and his being an equal among equals”. There is also reference to the language, the symbols and the anthem, which will be in the same spirit. It is argued that the positive implies the negative, that is, that the practical significance of this bill is the revocation of the Law of Return and changing the symbols of the state and its anthem such that they would not express its being Jewish but only democratic. Taking this step carries some weight. It is more forceful than a newspaper interview, for example. It is parliamentary activity that can bear fruit. The list’s attorney argued that the bill was a sort of “gimmick” in response to Basic Law: Israel – The Nation State of the Jewish People. This argument, in itself, is insufficient. The bill refers to the negation of the State of Israel as a Jewish (and democratic) state, and even if some party or other is frustrated as a result of the activity of the government and the Knesset, it is not exempt from the requirements of the Basic Law. However, the submission of the bill must be examined not just on the legal level but on the factual level. To be more precise, the factual level constitutes a central part of the legal examination. Thus, the party’s conduct in regard to the causes under the law must be examined in accordance with the strict rules. From that perspective, the bill, by itself, does not cross the necessary threshold. First, as already stated, one of the conditions is that of dominance in the purposes and active conduct. It was not argued that the bill also appears in the party’s platform. Second, the bill is signed by the Knesset members who served at the time, some of whom are no longer candidates in the current list, and others are place only symbolically. Thus, for example, MK Hanin Zoabi was placed in the 118^th spot on the list. In regard to the candidates who appeared before us and who are placed at the top of the list, it turns out that they do not support that position. Their attorney even referred to the bill as a kind of mistake. And again, the matter must be examined according to the relevant tests. It would not appear that the desire to annul the anthem, the law and the symbols is dominant, or that they are actively working in such a manner, in particular in regard to the figures who currently represent the list. On the contrary, those positions are not part of the party’s planned parliamentary activity. Not just remorse, but a lack of devotion to the purpose, and conduct at a very specific time. Were the list continuing in that conduct – since the Law of Return remains in force – the situation might be different. But that is not the situation before us.

            From reading the opinion of my colleague Justice Mintz, it appears that he does not agree with the reasoning of the majority. He expanded upon the subject of the party’s conduct that was addressed in the case law in the past, in regard to previous Knesset elections. Of course, one can be of this or that opinion in regard to decisions rendered in regard to previous Knesset elections, but it does not appear that at present, significant weight should be attributed to conduct that this Court already decided was insufficient to prevent the party’s participation in the elections. Thus, the focus is upon the new material, and that is what I addressed.

            My colleague Justice Mazuz is of the opinion that the term “Jewish state” in the context of Basic Law: The Knesset should be understood as referring to the identity of the state in the national sense. In other words, it does not necessarily refer to a change of the internal content, like the state’s symbols. In my view, it would be incorrect to construe the term “Jewish state” as a test of the right of the Jewish people solely to national existence for three reasons. First, the term “Jewish” is not merely a geographical matter, but an historical one as well. The state’s symbols carry weight in the basic definition of the state. So it is in regard to other states as well. Second, the case law has also adopted this view in the past (see, e.g., EDA 50/03 Central Elections Committee v. Tibi [35], 21-22, according to which “the ‘nuclear’ characteristics that shape the minimal definition of the state being a Jewish state…the right of every Jew to immigrate to the State of Israel in which Jews will be the majority; Hebrew is the primary official language of the state; Jewish heritage is a central component of its religious and cultural heritage”). Third, it would appear that practical experience shows that the objections in debates upon negation of the Jewish state focused upon the return to Zion, and not upon questions of general, historical, and religious symbols. Thus, the practical consequences of this distinction are unclear. The primary practical problem concerns proposals to annul the Law of Return, and not merely the changing of the symbols. In any case, it would seem that a construction that includes “internal” characteristics of the term “Jewish” would be more precise, and thus I would take exception to my colleague Justice Mazuz’s distinction. Of course, when I say “internal”, I refer to the most basic matters, but there is no need for elaboration or for a precise delineation.

            A final point. According to the position of the Attorney General, there is significance to the fact that the Ra’am and Balad parties are running together on one list. As opposed to this, I am of the opinion that as a rule, a party that has been tainted by a cause that disqualifies it from participating in the elections cannot cross the hurdle by joining with another party. Such an approach would afford too easy an exemption for a party that should be disqualified simply because it joins with another. In my view, the Attorney General’s approach, according to which weight should be given to the combining of parties – even if this does not grant an “exemption” – is problematic. The reason for this is that it is not clear how to calculate such a factor. There is also the fear that parties might join together so that one will “clean” the other of the cause that has tainted it. It is one thing to recognize remorse, and another to grant a seal of approval due to joining another party. I am of the opinion that if there is a cause for disqualification, then the law requires that the list be barred from running, subject, of course, to restricting disqualification to exceptional cases. Therefore, I did not grant weight to the arguments concerning the relationship between Balad and Ra’am in examining the matters.

9.         The right to vote and the right to be elected are twins, but not identical. In practice, “to vote and be elected” is presented as a single right, when each actually has an independent dimension. This is so, despite the strong connection between them, regarding which it suffices to mention that the right to be elected influences the right to vote. I will demonstrate what the two rights share and what distinguishes them in regard to the issue addressed in these proceedings – the application of sec. 7A of Basic Law: The Knesset.  

            The right to vote focuses upon the identity of the decider and the right to be elected on the question of who is qualified to represent the people, or in our case – who is not qualified to represent them. It would appear that the right to vote places its emphasis upon the individual. The vote of every voter is worth no less that the vote of any other voter, regardless of his status, position, conduct, or statements. Therefore, the criteria for identifying who is entitled to vote are formal. As opposed to this, the question as to who can be elected is not merely formal, but value based. This is how we are to understand the causes that prevent participation in the elections that concern not only support for armed struggle, but also negation of the existence of the State of Israel as a Jewish and democratic state, and incitement to racism. Its purpose is to define the society and its boundaries. The purpose of the right to vote is to protect the individual, whereas the purpose of the right to be elected is to protect the unity of the nation. Both rights are precious.

***

It was therefore decided, on March 17, 2019, by a majority, in accordance with the opinion of President E. Hayut, not to approve the decision of the Central Elections Committee in the matter of the disqualification of the candidacy of Cassif; to grant the appeal in the matter of the Ra’am-Balad list and rule that it is not barred from participating in the elections for the 21^st Knesset; to grant the appeal in the matter of Ben Ari and rule that he is barred from participating in these elections. In addition, the Court unanimously decided to deny the appeal in all that regards the Election Committee’s decision not to disqualify the Hadash-Ta’al list, and to deny the appeal in the matter of the non-disqualification of Ben Gvir.

Given this day, 15 Tammuz 5779 (July 18, 2019).

 

HCJ 3132/15

 

 

Petitioner:                    Yesh Atid Party led by Yair Lapid

 

                                                            v.

 

Respondents:              1. Prime Minister of Israel

                                    2. Attorney General

                                    3. 34^th Government of the State of Israel

                                    4. Deputy Minister of Health

                                    5. Deputy Minister of Regional Cooperation

                                    6. Deputy Minister of Foreign Affairs

                                    7. Likud Faction

                                    8. Torah Judaism Faction

 

Attorneys for the Petitioner: Adv. Guy Busy, Adv. Ronen Aviani

Attorneys for Respondents 1 - 6: Adv. Sharon Rotshenker, Adv. Yonatan Berman

Attorney for Respondent 7: Adv. Avi Halevi

Attorney for Respondent 8: No appearance

 

Dates of Hearings: 26 Av 5775 (Aug. 11, 2015); 28 Heshvan 5776 (Nov. 10, 2015)

 

 

The Supreme Court sitting as High Court of Justice

 

Petition for an order nisi

 

Before: President M. Naor, Deputy President E. Rubinstein, Justice S. Joubran, Justice H. Melcer, Justice N. Hendel

 

Abstract:

The petition challenged the authority of the Prime Minister to serve simultaneously as a minister responsible for a ministry under Basic Law: The Government. The Petitioners argued that the Basic Law does not empower the Prime Minister to serve simultaneously as a minister, due to the omission of sec. 33(d), which was part of the prior Basic Law: The Government of 1992, from the current Basic Law established in 2001 (hereinafter: the current Basic Law). The said provision expressly stated that “The Prime Minister may also function as a Minister appointed over an office”. The Petitioner also pointed to sec. 24 of the current Basic Law, which provides for situations in which the Prime Minister may temporarily serve as an acting minister.

The High Court of Justice (President Naor, with Deputy President Rubinstein and Justices Joubran and Hendel concurring, and Justice Melcer dissenting) denied the Petition, holding:

Per President Naor: Purposive interpretation of the current Basic Law shows that the Prime Minister has the authority to serve simultaneously as a minister. The current Basic Law is silent on the issue of the Prime Minister’s authority to serve as a minister responsible for a ministry. The Basic Law’s silence does not constitute a negative constitutional arrangement that denies the Prime Minister authority for parallel service, but rather constitutes a positive constitutional implication. The silence of the current Basic Law is not intended to deny the Prime Minister authority to serve simultaneously as a minister. This interpretive conclusion is required by the purposes grounding the current Basic Law.

The Knesset, as a constituent authority, cannot be ascribed the desire to prevent the Prime Minister from serving as a minister. The practice of the Prime Minister appointing himself as a minister has been adopted since the earliest days of the State. It was invoked even after the Basic Law of 1992 entered into force, and even after its repeal and the entry into force of the current Basic Law. The language of the current Basic Law also provides no support for the Petitioner’s approach. The arrangement under sec. 24 of the current Basic Law, which concerns the temporary appointment of an acting minister, does not indicate an intention to deny the Prime Minister authority to appoint himself as a minister in an additional ministry, nor does it indicate any material change in the accepted practice. The provision in regard to serving as a temporary acting minister was also included in the prior Basic Law. It treats of a focused, specific aspect that does not affect the issue of a permanent appointment of the Prime Minister as a minister. Moreover, the full range of the Prime Minister’s authority should be examined from a broad perspective, and in a manner that acknowledges the Prime Minister’s authority to make a permanent appointment, along with other particular powers established by the legislature. In addition, when the Basic Law sought to exclude the Prime Minister from the scope of the term “minister”, it did so expressly.

It is difficult to ascribe to the framers of the current Basic Law an intention to create a negative arrangement in regard to the authority of the Prime Minister. In any case, in interpreting Basic Laws, it is not the subjective purpose, but rather the objective purpose of the current Basic Law that is decisive. That purpose requires an interpretation by which the Prime Minister is authorized to serve simultaneously as a minister responsible for a ministry. One of the objective purposes underlying the current Basic Law: The Government is the Prime Minister’s status as “first among equals” in his government, and as possessing the power to shape his government and assign the roles therein. This is a fundamental concept of our democratic regime, which reflects the constitutional value of the separation of powers.

Justice Melcer (dissenting) was of the opinion that Basic Law: The Government does not grant the Prime Minister authority to serve simultaneously as a minister responsible for a ministry, except in the situation provided for under secs. 24(b) and (c) of Basic Law: The Government.

In conclusion, in light of the holding that the Prime Minister possesses the authority to hold additional ministerial portfolios, the Petition was denied by the Court majority, subject to the condition (per Deputy President Rubinstein, Justices Melcer and Hendel concurring) that the Court issue a “warning of voidance” granting the Government a period of eight months for an in-depth examination of the subject of parallel service.

 

 

 

Supplemental Judgment[1]

 

President M. Naor:

Does Basic Law: The Government grant the Prime Minister authority to serve simultaneously as a minister responsible for a government ministry? That is the question before this Court.

The Proceedings in a Nutshell

1.         The Petition before the Court was filed on May 6, 2015, and concerned the political institution of a “Deputy Minister with the status of a Minister”. On July 7, 2015, after hearing oral arguments, we granted the Petitioner’s request to file an amended petition. On July 12, 2015, an amended petition was filed, additionally requesting orders nisi on the question of the Prime Minister’s authority to simultaneously serve as a minister responsible for a government ministry – a fundamental issue not raised in the original petition. We therefore decided (on July 13, 2015) to split the proceedings such that a partial judgment would be issued in regard to the issue of the institution of  a “Deputy Minister with the status of a Minister”, and the proceedings on the additional issue would continue thereafter. On Aug. 23, 2015, we delivered our partial judgment in which we held that the institution of “Deputy Minister with the status of a Minister” was invalid. On Nov. 10, 2015, we heard oral arguments on the issue that now requires our decision, that of the authority of the Prime Minister to serve as a minister.

2.         The Petitioner argued that Basic Law: The Government does not authorize the Prime Minister to serve simultaneously as a minister. The Petitioner’s argument was premised primarily upon the omission of the provisions of sec. 33(d), which were comprised in Basic Law: The Government of 1992 (hereinafter: the Basic Law of 1992), from the current language of the Basic Law, as amended in 2001 (hereinafter: the current Basic Law). The aforesaid provision expressly stated: “The Prime Minister may also function as a Minister appointed over an office”. The Petitioner also pointed to sec. 24 of the current Basic Law, which addresses the instances in which the Prime Minister may temporarily serve as an acting minister.

            As opposed to this, Respondents 1 – 6 argued that a situation in which the Prime Minister assumes an additional ministerial role is consistent with the current Basic Law, as well as with customary constitutional practice since the founding of the State.

Discussion and Decision

3.         After carefully reading the arguments of the Parties, and further hearing their oral arguments, I have arrived at the conclusion that the Petition should be denied. In my opinion, purposive interpretation of the current Basic Law leads to the conclusion that the Prime Minister has the authority to serve simultaneously as a minister. Inasmuch as the focus of this matter is the interpretation of the Basic Law, I shall briefly describe the changes introduced in the Basic Law over the years.

4.         Basic Law: The Government was originally established in 1968 (hereinafter: the Basic Law of 1968). That law established the status of the Prime Minister as a minister who is the chief and first among the other ministers, stating that “The Government consists of the Prime Minister and other Ministers” (sec. 5(a) of the Basic Law of 1968; and see Elyakim Rubinstein, Basic Law: The Government in its Original Form – Theory and Practice, 3(2) Mishpat Umimshal 571, 590 (1996) (Hebrew)). This view changed with the establishment of the Basic Law of 1992, as part of a general change in the Israeli system of governance, which focused primarily upon the introduction of direct elections for the Prime Minister by the electorate. As part of that amendment, the status of the Prime Minister under the Basic Law changed to a distinct status, different from that of the other government ministers, and it was established that “The Government is comprised of the Prime Minister and Ministers”  (sec. 3(a) of the Basic Law of 1992). In 2001, pursuant to a decision to repeal the direct election of the Prime Minister, the Basic Law was again reestablished. This is the current Basic Law, which essentially adopts the arrangements of the Basic Law of 1968, inter alia, that the Prime Minister is “first among equals” in his government (Amnon Rubinstein & Barak Medina, Constitutional Law of the State of Israel 834 (6^th ed., 2005) (hereinafter Rubinstein & Medina) (Hebrew)). It, too, establishes, in sec. 5(a), that “The Government is composed of the Prime Minister and other Ministers”. The provisions of the aforementioned sec. 33(d), which did not appear in the Basic Law of 1968, is also entirely absent from the current Basic Law.

5.         The current Basic Law is, thus, silent in regard to the authority of the Prime Minister to serve as a minister responsible for government ministry. This Court addressed the significance of that silence, obiter dictum, and without deciding the issue, in HCJ 3002/09 Israel Medical Association v. Prime Minister (June 9, 2009) (hereinafter: the Medical Association case). In that case, my colleague Justice Melcer made several comments in regard to the question of the Prime Minister’s authority to serve simultaneously as a minister – a question that did not directly arise from the petition in that case. His position was that the Basic Law’s silence should be construed as a negative arrangement for two primary reasons anchored in the subjective purpose of the Basic Law: first, the deletion of the said sec. 33(d), which expressly addressed the Prime Minister’s authority also to serve as a minister, and second, the arrangement established for situations in which the Prime Minister may temporarily serve as an acting minister for a period of three months, under sec. 24 of the current Basic Law. President Beinisch disagreed with the position presented by my colleague Justice Melcer. My colleague Justice Rubinstein, who wrote the primary opinion in that case, left the question open, noting that it requires “clarification in the future” (ibid., para. 43).

6.         In my view, the Basic Law’s silence does not constitute a negative constitutional arrangement, but rather a positive constitutional implication (see and compare: Aharon Barak, Interpretation in Law – Constitutional Interpretation 429 (1994) (Hebrew); Aharon Barak, Purposive Interpretation in Law 440 (hereinafter: Barak, Purposive Interpretation) (Hebrew)). An implied meaning can be inferred from the express meaning of the text. Indeed, the implied meaning can be negative – a negative arrangement – meaning that the explicitly established arrangement will not apply to an issue not expressly addressed. But the implied meaning can also be positive, such that the explicitly established arrangement will apply to an issue that is not expressly addressed. That, I believe, is the case before us. The current Basic Law did not seek, by its silence, to deny the Prime Minister’s authority to serve simultaneously as a minister. This interpretative conclusion is required by the purposes grounding the current Basic Law, which I will now address.

Purposive Interpretation of the Current Basic Law

7.         The Petitioner argues that the omission of sec. 33(d) from the current Basic Law indicates a subjective purpose of preventing the Prime Minister from serving simultaneously as a minister responsible for a ministry. In my opinion, the interpretation advanced by the Petitioner is narrow, and is not appropriate to the uniqueness of the constitutional text. Indeed, the Basic Law must be interpreted “with a broad view” (ibid., 440). Constitutional interpretation “must be generous, not legalistic or pedantic” (ibid.), as is appropriate to the elevated status of the Basic Laws. In any case, in my opinion, this is the purpose that the drafters of the constitutional text intended to achieve.

8.         An examination of the legislative history of the current Basic Law shows that we cannot ascribe to the Knesset, as a constituent authority, an intention to prevent the Prime Minister from serving as a minister responsible for a ministry. This subject was not addressed in the Explanatory Notes of the current Basic Law. It also finds no expression the deliberations of the Knesset Constitution, Law and Justice Committee in preparing the current Basic Law for second and third readings, nor in the plenum debates (see: 15(3) Divrei HaKnesset 3145 (5761), and particularly the comments of the Chairman of the of the Constitution, Law and Justice Committee, Knesset Member Amnon Rubinstein, who pointed out the main changes introduced in the Basic Law, without mentioning the subject we are now discussing (Protocol of Hearing 258 of the Constitution, Law and Justice Committee of the 15^th Knesset (Feb. 13, 2001); Protocol of Hearing 264 of the Constitution, Law and Justice Committee of the 15^th Knesset (Feb. 20, 2001); ); Protocol of Hearing 266 of the Constitution, Law and Justice Committee of the 15^th Knesset (Feb. 26, 2001); ); Protocol of Hearing 268 of the Constitution, Law and Justice Committee of the 15^th Knesset (Feb. 27, 2001); Protocol of Hearing 272 of the Constitution, Law and Justice Committee of the 15^th Knesset (March 5, 2001); Protocol of Hearing 273 of the Constitution, Law and Justice Committee of the 15^th Knesset (March 6, 2001)).

9.         My conclusion is reinforced by an examination of the pre-constitutional history of the Basic Law. The pre-constitutional history is the social and legal background of the Constitution, “for it is a well-known axiom that the law of a people must be studied in the light of its national way of life” (HCJ 73/53 Kol Ha’am Co. v. Minister of the Interior, IsrSC 7 871, 884 (1953) [http://versa.cardozo.yu.edu/opinions/kol-haam-co-ltd-v-minister-interior]). The practice by which the Prime Minister is authorized to appoint himself as a minister goes back to the earliest days of the State, well before the establishing of the Basic Law of 1968 (see: 10 Divrei HaKnesset 233 (5716) (the Seventh Government); 23 Divrei HaKnesset 564 (5718) (the Eighth Government); 28 Divrei HaKnesset 92 (5720) (the Ninth Government); 32 Divrei HaKnesset 204 (5722) (the Tenth Government); 37 Divrei HaKnesset 2162 (the Eleventh Government); 41 Divrei HaKnesset 677 (5725) (the Twelfth Government); 44 Divrei HaKnesset 350 (5726) (the Thirteenth Government), and this is not an exhaustive list).

10.       The practice also continued after the establishment of the Basic Law of 1968, although it, too, lacks an express provision in this regard (see: 97 Divrei HaKnesset 3403 (5744) (the Twentieth Government); 12 (1) Divrei HaKnesset 215 (5749) (the Twenty-third Government); 12 (2) Divrei HaKnesset 421 (5750) (the Twenty-fourth Government); 13 (1) Divrei HaKnesset 11 (5752) (the Twenty-fifth Government), and this is not an exhaustive list). Thus, for example, Prime Minister Menachem Begin informed the Speaker of the Knesset of his successfully forming a Government, as follows:

                        To the Honorable Speaker of the Knesset, Mr. Yitzhak Shamir

                        Jerusalem.

                       

                        Mr. Speaker,

On 21 Sivan 5737, 7 June 1977, his Honor the President of the State was kind enough to appoint me to form a Government. I respectfully inform Your Honor that, in accordance with section 13 (b) of Basic Law: The Government, I have fulfilled that task, and I will duly present the Government, its composition and the distribution of functions, before the Knesset on 4 Tammuz 5737, 20 June 1977.

 

                        And this is the composition of the Government:

Menachem Begin – Prime Minister, Simcha Ehrlich – Minister of Finance, Aharon Abu-Hatzeira – Minister of Religion, Yosef Burg – Minister of the Interior, Moshe Dayan – Minister of Foreign Affairs, Yigal Horowitz – Minister of Commerce, Industry and Tourism, Zevulun Hammer – Minister of Education, Ezer Weizman – Minister of Defence, David Levy – Minister of Absorption, Yitzhak Moda’i – Minister of Energy and Infrastructure, Gideon Patt – Minister of Construction and Housing, Eliezer Shostak – Minister of Health, Ariel Sharon – Minister of Agriculture.

 

During a brief transition period, the Prime Minister will be responsible for the Ministries of Welfare, Justice, Transportation, and Communications.

 

Respectfully,

M. Begin

(As published in Arye Naor, Begin in Power – A Personal Testimony, 60 (1993) (Hebrew) (emphasis added – M.N.).

 

11.       Needless to say, the said practice has continued to this very day, even following the entry into force of the Basic Law of 1992 (see: 14(1) Divrei HaKnesset 13 (5756) (the Twenty-seventh Government); 15 (1) Divrei HaKnesset 251 (5759) (the Twenty-eighth Government); 15 (3) Divrei HaKnesset 3209 (5761) (the Twenty-ninth Government)), and even after its repeal and the entry into force of the current Basic Law (see: 16 (1) Divrei HaKnesset 124 (5763) (the Thirtieth Government); 18 (1) Divrei HaKnesset 486 (5769) (the Thirty-second Government); Protocol of the 16^th session of the 20^th Knesset, 19 (May 14, 2015) (the Thirty-fourth Government)). There was good reason for President Beinisch to note that this practice is rooted “deeply in the political tradition of the Israeli system of government”, and that “it is difficult to view the omission of section 33(d) of the former Basic Law: The Government as expressing the legislature’s desire to effect such a significant change in our accepted constitutional governmental regime” (the Medical Association case, para. 2).

12.       I have also found no support for the Petitioner’s approach in the language of the current Basic Law. The arrangement in regard to temporarily serving as an acting minister, under sec. 24 of the current Basic Law, does not, in my opinion, indicate an intention to deny the Prime Minister authority to appoint himself as a minister in an additional ministry. The arrangement in regard to serving as an acting minister is a special arrangement. The reason for limiting the term in that arrangement is related to the fact that serving as an acting minister does not require the Knesset’s consent (see: sec. 24 of the current Basic Law), whereas the Prime Minister’s serving as a minister responsible for a ministry requires that the Knesset express confidence (see: sec. 13(d) of the current Basic Law).

13.       Indeed, the existence of one authority does not deny the other authority:

Even the changes that the legislature effected in the arrangement regarding temporarily serving as an acting minister (now sec. 24 of the Basic Law) do not indicate a material change in the accepted, prevailing view.  This, firstly, because the arrangement in regard to serving as an acting minister was included in the previous version of the Basic law, alongside the aforesaid sec. 33(d); and secondly, because, in any case, this arrangement concerns a focused, specific aspect, and does not, in my opinion, concern the issue of the permanent appointment of the Prime Minister as a minister. Moreover, the overall powers of the Prime Minister must be viewed broadly, in a manner that allows for the existence of the authority of permanent appointment alongside other particular powers, as established by the legislature (the Medical Association case, para. 2 of the opinion of President Beinisch; and see and compare HCJ 6924/00 Shtenger v. Prime Minister, IsrSC 55 (2) 485, 494 (2001) (hereinafter: the Shtenger case)).

            14.       Moreover, when the current Basic Law sought to exclude the Prime Minister from the term “minister”, it did so expressly (see, for example: sec. 22 of the current Basic Law). This, as opposed to the Basic Law of 1992, in which – similar to the provision of the aforementioned sec 33(d) – there were provisions that expressly included the Prime Minister in the term “minister” (see, for example: secs. 41-42 of the Basic Law of 1992, concerning delegation and assumption of powers). The reason for this difference lay in the change to a system of direct election of the Prime Minister. That change led to a need to clarify that the Prime Minister was authorized to act simultaneously as a minister, in view of the change in the Prime Minister’s status relative to the ministers. The current Basic Law, similar to the Basic Law of 1968, includes the Prime Minister among the ministers without the said distinction – thus, as noted, “The Government is composed of the Prime Minister and other Ministers” (sec. 5(a) of the current Basic Law). That being the case, the need for an express provision in regard to the Prime Minister’s authority to serve as a minister responsible for a ministry became superfluous:

We would recall that the Basic Law of 1992 established that “The Government is comprised of the Prime Minister and Ministers”, i.e., the Prime Minister is not generally counted among the ministers. Therefore, it was necessary to clarify that the person serving as Prime Minister may simultaneously serve as the head of a government ministry. Upon return to the parliamentary system in the Law of 1992, there was no longer any need for the said provision of sec. 33(d), inasmuch as the Prime Minister is also included among the ministers (Shimon Shetreet, The Government: The Executive Branch – Commentary to Basic Law: The Government (to be published) (Hebrew); and see, in general, ibid., pp. 233-235 of the manuscript).

15.       It is, therefore, difficult to attribute to the drafters of the Basic Law an intention to create a negative arrangement in regard to the authority of the Prime Minister to serve as a minister. In any case, in the interpretation of Basic Laws, it is not the subjective purpose that is decisive, but rather the objective purpose (see: Barak, Purposive Interpretation, 456). The objective purpose reflects – at a number of abstract levels – the basic concepts, values and purposes that the constitutional text was intended to achieve in a democratic state (see: ibid., 444-445). The objective purpose of the current Basic Law leads to the interpretation according to which the Prime Minister is authorized to serve simultaneously as a minister responsible for a ministry.

16.       One of the objective purposes grounding the current Basic Law is the status of the Prime Minister as “first among equals” in his government (Rubinstein & Medina, 834), and as having the authority to shape the composition of the Government and the distribution of duties therein. That is a basic concept of our democratic regime, which reflects the constitutional value of separation of powers. In this regard, the words of President A. Barak are apt:

The Prime Minister is a minister (s. 5(a) of Basic Law: The Government). Any law that derives from the status of a minister derives also from the status of the Prime Minister. Notwithstanding, the Prime Minister is a special kind of minister. He is first and foremost among the ministers. This is the case because of several provisions in Basic Law: The Government. First, it is the Prime Minister who forms the Government. The President of the State gives the task of forming the Government to a member of the Knesset (s. 7(a) of Basic Law: The Government). When the Government has been formed by that member of the Knesset, he becomes the Prime Minister (s. 13(c) of Basic Law: The Government). […] Second, the Cabinet owes collective responsibility to the Knesset, but the ministers are personally responsible to the Prime Minister for the offices to which they are appointed (s. 4 of Basic Law: The Government). This is personal responsibility of each minister to the Prime Minister in respect of his carrying out his office as a minister. Third, it is the Prime Minister who conducts the Cabinet meetings (see and cf. s. 16(a) of Basic Law: The Government). Fourth, the resignation or death of a Prime Minister means the resignation of the Government as a whole (ss. 19 and 20 of Basic Law: The Government). Moreover, the Prime Minister has the power, in certain circumstances and with the consent of the President of the State, to bring about the dissolution of the Knesset (s. 29(a) of Basic Law: The Government). Finally, if a minister ceases holding office, or he is temporarily incapable of carrying out his office, the Prime Minister or another minister designated by the Cabinet deputizes for him (s. 24(b) of Basic Law: The Government). It follows that the Prime Minister is a member of the Cabinet, but his status is a special one. He is the head of the Government. It is he who forms it. It is he who decides its composition and who will hold the various offices in it, and it is he that directs its main activities and objectives (HCJ 5261/04 Fuchs v. Prime Minister, IsrSC 59 (2) 446, 461 (2004) (hereinafter: the Fuchs case) [http://versa.cardozo.yu.edu/opinions/fuchs-v-prime-minister] (emphasis added – M.N.)).

17.       This purpose derives from the language of the constitutional text, and from the fundamental values of the system (see: Barak, Purposive Interpretation, 447, 449). It also derives from the case law (see: ibid., 448). On more than one occasion, this Court has emphasized the special status of the Prime Minister, and the broad discretion that he is granted in forming his government (see: the Fuchs case, 465; HCJ 5853/07 Emunah – National Religious Women’s Organization v. Prime Minister, IsrSC 62 (3) 445, 476-478 (2007) [http://versa.cardozo.yu.edu/opinions/emunah-v-prime-minister] and the references there; also see and compare: HCJ 2533/97 Movement for Quality Government in Israel v. Government of Israel, IsrSC 51 (3) 46, 58 (1997); the Shtenger case, 492; and see: Rubinstein & Medina, 836).

18.       The Petition before us concerns only the question whether the Prime Minister is authorized to serve simultaneously as a minister responsible for a ministry. To that, my answer is affirmative. I have not made any decision – one way or the other – in regard to what need not be decided for the instant case: the breadth of the Prime Minister’s discretion in such matters, and the scope of this Court’s intervention.

            Therefore, it is my position that the second part of the Petition should be denied, without an order for costs.

Afterward

19.       Following the above, I reviewed the opinion of my colleague Justice H. Melcer. My position has not changed, and I would like to emphasize several points.

            In my colleague’s opinion, interpretation of the current Basic Law shows that the Prime Minister lacks authority to serve simultaneously as a minister responsible for a ministry. My colleague basis his argument of the existence of a negative arrangement – which, according to his approach, derives from the omission of sec. 33(d) from the current Basic Law, and from the existence of an arrangement in regard to serving temporarily as an acting minister (sec. 24 of the current Basic Law) – and upon other provisions found in the current Basic Law, such as, the provision that a law may empower “the Prime Minister or a Minister” to make regulations (sec. 37(b) of the current Basic Law), and the provision regarding ministerial responsibility. As stated, I hold a different view. I found no basis for my colleague’s approach either in the language of the current Basic Law or in its purpose. I addressed that in detail, above, and I will not reiterate. But I would emphasize that, in my opinion, interpreting the Basic Law from a broad perspective that is neither legalistic nor pedantic, shows that the authority exists, and that we should not infer a “negative”, but rather an “affirmative”, from the omission of the provision that expressly provided for the Prime Minister’s authority to serve as a minister (sec. 33(d) of the Basic Law of 1992).

20.       I cannot accept my colleague’s argument that this interpretive approach yields practical difficulties. In any case, the vast majority are resolved by our customary interpretive rules and principles (such as, lex specialis derogat lex generali and ejusdem generis). I also do not agree with the statement that the current Basic Law “did not contemplate a situation in which, as a matter of course, the Prime Minister would also serve as a minister responsible for a ministry” (para. 15 of my colleague’s opinion), in view of the pre-constitutional history that I reviewed in my opinion, which serves as a source for ascertaining the purpose (and therefore, I see no need whatsoever to address the status of constitutional custom).

21.       As for comparative law, which my colleague addressed at length, as a rule, it is indeed an important source of interpretive inspiration, and fertile ground for broadening horizons. But such inspiration is not always appropriate. In addition to the need that the legal systems being compared have a common ideological basis and common loyalty to fundamental values, there must also be “nothing in the historical development and social circumstances of the local or foreign system that distinguishes it enough to challenge interpretational inspiration” (Barak, Purposive Interpretation, 452 [English: Barak, Human Dignity as a Constitutional Value, 92 (Cambridge, 2015)). I do not believe that such interpretive inspiration is appropriate to the circumstances of the matter before us, in view of the complex constitutional history and the material differences in the systems of governance. In any case, many of the examples adduced by my colleague in regard to the prevailing trends in Germany and England do not testify to an absence of authority, but rather to a custom of not exercising it. We are, therefore, concerned with the subject of discretion, which – as we should recall – did not arise in the matter before us.

22.       To my way of thinking, some of my colleague’s arguments, although raised in the context of authority, actually concern discretion. Thus, for example, my colleague pointed out that according to the proposed interpretation “the Prime Minister can also fill the roles of all of the ministers” (para. 9 of his opinion, emphasis omitted – M.N.), and he also noted the heavy burden borne by the Prime Minister, which might prevent him from devoting the necessary time and attention to his ministerial tasks (see para 17 of his opinion). My colleague further pointed out that, in certain circumstances, the Prime Minister’s serving as a minister responsible for a ministry might lead to a violation of basic rights (see paras. 38-40 of his opinion). Without expressing an opinion on the merits, these issues do not concern the Prime Minister’s authority to serve simultaneously as a minister, but rather the question of discretion in exercising that authority. As I stated above, it is not my intention to address issues that were not raised by the petition before us, and decide what does not require decision.

23.       I will now turn to the opinions of my colleagues Deputy President E. Rubinstein and Justice N. Hendel, and especially to their conclusion. My colleagues concurred with my conclusion that the Petition be denied inasmuch as the current Basic Law did not intend to deny the Prime Minister’s authority in principle to serve simultaneously as a minister. However, my colleagues held that, along with denying the Petition, we should issue a “warning of voidance” in the sense that if the currently prevailing situation does not materially change within eight months, it may be appropriate to revisit the question of authority and the exercise thereof. My colleagues arrived at this result in light of their conclusion that an extreme deviation from the margin of reasonableness in exercising the authority could color it in the future “with the colors of a deviation from authority”. In other words, my colleagues held that a “warning of voidance” would be appropriate in that the possible flaws that they identified in the area of discretion might justify a future finding that the Prime Minister is not authorized to serve in additional ministerial roles to a certain extent (see para. 10 of the opinion of my colleague Deputy President E. Rubinstein, and para. 3 of the opinion of my colleague Justice N. Hendel).

24.       My colleagues’ discussion of discretion, and the question whether flaws in the area of discretion might justify a future conclusion of lack of authority is one that deviates from the framework of the arguments raised before us in this petition. My colleagues did not suffice with a discussion of the issue of discretion. They went on to craft the remedy they propose for the petition, in view of the theoretical conclusions they reached in regard to discretion. In this regard, I would like to emphasize that the Parties did not raise any arguments in regard to the subject of discretion. The Respondents were not afforded an opportunity to argue this point. They were not afforded an opportunity to address the remedy of a “warning of voidance”. The Petitioner also made it unequivocally clear that its arguments were focused exclusively upon the subject of authority (the attorney for the Petitioner stated in the course of the hearing: “My arguments are only in regard to authority. In light of the amendment, the Prime Minister lacks authority to serve in additional ministries” (p. 2 of the protocol of Nov. 10, 2015). In any case, the Petitioner did not argue that flaws in regard to discretion might lead to a lack of authority.

25.       In my view, there is no room for addressing arguments that were not heard, and issues that were not raised by the Parties. Therefore, I do not believe that it was appropriate to consider questions in regard to discretion, and it was certainly not appropriate to grant relief in the form of a “warning of voidance” that was not requested, and regarding which the Respondents were not afforded an appropriate opportunity to respond. For my part, I refrain from expressing any opinion on subjects that were not raised before us. According to my approach, it is preferable to hold that “we will cross that bridge when we get to it” (see and compare: my opinion in CA 11120/07 Simhoni v. Bank HaPoalim (Dec. 28, 2009); my opinion in CA 11039/07 Eliahu Insurance Co. Ltd. v. Avner Road Accident Victims Insurance Association Ltd., (July 6, 2011); CA 1326/07 Hammer v. Amit, para. 2 of my opinion (May 28, 2012) [http://versa.cardozo.yu.edu/opinions/hammer-v-amit]).

            I have, therefore, refrained from expressing any opinion in regard to a petition or forms of relief that are not before the Court in the procedural framework as established.

 

Justice H. Melcer:

1.         After reviewing the opinion of my colleague President M. Naor, I am unable to concur with her position or proposed result.

            In my view, it would have been appropriate to issue an order nisi in this petition for the purpose of examining the issue whether Basic Law: The Government permits the Prime Minister, in normal circumstances (that are not addressed by sec. 24(b) and (c) of the said basic Law), to serve – alongside his high office – as a minister responsible for a ministry (and accordingly, appoint a deputy minister for himself). In my view, pursuant to the order nisi, if the Respondents could not present justifying arguments, it would have been appropriate to make the order absolute in regard to all the issues, and prohibit such a double role for the Prime Minister.

2.         I set out the basis for my above approach in a broad comment that I wrote in HCJ 3002/09 Israel Medical Association v. Prime Minister of Israel (June 9, 2009) (hereinafter: the Medical Association case). That case concerned a petition challenging the continued service of Knesset Member Rabbi Yaakov Litzman, who, on April 6, 2009, had been appointed to serve as Deputy Minister of Health, with the status of Deputy Minister with the status of a Minister. In our judgment in that case, we held that the said institution has no grounding in Basic Law: The Government. However, in light of the historical background, and in view of the quasi-reliance that had been created, we denied that petition, but made it clear that such a situation could not be repeated in the future, and we therefore issued a “warning of voidance” (see: para.41 of the opinion of my colleague (then) Justice E. Rubinstein, who wrote the primary opinion in that case, in which President D. Beinisch and I concurred).

            In the Medical Association case, I raised a possible reason for the “warning of voidance”. I presented the question whether, due to the rescission of the provision in the previous Basic Law: The Government (which was based upon the concept of direct, personal election of the Prime Minister in direct, equal, national general elections by secret-ballot), and which expressly permitted the Prime Minister to serve as a minister responsible for a ministry, we could not say that the provisions of the current Basic Law (established March 7, 2001) prohibited such parallel service (except under the circumstances of secs. 24(b) and (c) of Basic Law: The Government, and that the affirmative provisions of those sections implied a negative conclusion in regard to other situations), and that inasmuch as, in any case, the Prime Minister could not serve as a minister, as noted, he could not appoint a deputy for himself in that capacity (hereinafter: the new interpretation). In this regard, I listed a number of interpretive and constitutional considerations, inter alia, from comparative law, that support the new interpretation, while noting that there are a few reasons justifying the practice that had been followed until that time, by which the Prime Minister occasionally served as a minister responsible for a ministry (hereinafter: the old interpretation). In conclusion, I expressed the opinion that even if the new interpretation may appear preferable, the constitutional system should be allowed to internalize this alternative, and either conform to it or respond to it. I added in this regard:

What is required here is that if the constituent authority is of the view that the said interpretation should not be accepted, then it will surely know how to express its position – either by clarification or amendment of the relevant Basic Law (ibid., para. 6(b) of my opinion).

            President D. Beinisch opposed my said approach, although noting that my examination was: “comprehensive and interesting”, and “raises new – and perhaps appropriate – thought about our system”. However, she was of the opinion – on the basis of an examination of former case law and practice – that the change that I pointed out required express reference in the Basic Law, that she believed was lacking (ibid., para. 2 of her opinion).

            As opposed to this, my colleague (then) Justice Rubinstein responded to my opinion as follows:

It would seem to me that, at present, we remain in the framework of the existing constitutional custom, which was not rescinded by the current Basic Law, and which was approved by the Knesset. Therefore, no one questioned the Prime Minister’s fulfilling additional ministerial roles. Deciding the questions raised by my colleague was left, by him as well, for a later date. However, as for myself,  I find the approach that my colleague  proposed to be persuasive on its face, but we do not live in an ideal world, and it requires future examination, as the Chinese proverb goes: a journey of a thousand miles begins with a single step (ibid., para 43 of his opinion).

3.         Merely six years have passed, and the problem has again arisen before us in all its ramifications, as in presenting his new government before the Knesset, on May 14, 2015,  Prime Minister Benjamin Netanyahu assumed the roles Minister of Foreign Affairs, Minister of Health, Minister of Communications, and Minister of Regional Coordination, and thereafter, appointed deputy ministers in the Ministry of Health (Knesset Member Yaakov Litzman), the Ministry of Foreign Affairs (Knesset Member Tzipora Hotoveli), and the Ministry of Regional Coordination (Knesset Member Ayoob Kara).

4.         In the framework of the petition filed by the Petitioner challenging the above conduct, we decided, on July 13, 2015, that the proceedings would be separated such that a partial judgment would be given in the matter of the institution of a “Deputy Minister with the status of a Minister”, and that the examination of the other issue, concerning the Prime Minister’s authority to serve simultaneously as a minister responsible for a ministry, would continue thereafter.

5.         On Aug. 23, 2015, after hearing the arguments of the Parties’ attorneys, we issued a partial judgment in which we held that the institution of a “Deputy Minister with the status of a Minister” no longer has legal force. Pursuant to that judgment, Prime Minister Benjamin Netanyahu ceased to serve as Minister of Health, and the Deputy Minister of Health, Knesset Member Yaakov Litzman, was appointed Minister of Health on Sept. 2, 2015.

6.         Thereafter, on Nov. 10, 2015, we heard arguments on the second issue that had remained pending. On that question, I arrived at the conclusion that it would appear that, under normal circumstances, the Prime Minister lacks authority to serve as a minister responsible for a ministry, alongside his high office, inasmuch as not only is the new interpretation that I presented in the Medical Association case preferable, but the changes since introduced to Basic Law: The Government require the conclusion that it is the only possible interpretation.

            I will, therefore, now present the reasoning. My arguments will be set out as follows: In Chapter I, I will consider the interpretation of the constitutional text from within. In Chapter II, I will present the theory of implied constitutional interpretation, and the tools and elements that compose it and which will serve me thereafter. In Chapter III, I will address the relevant constitutional and case-law history. In Chapter IV, I will proceed to an examination of the constitutional values that ground my approach, as well as the imports to be learned from comparative law in this matter. In the course of these chapters, I will, where appropriate, refute the counter arguments presented by the Respondents. In Chapter V, I will examine the power of the constitutional custom that, as argued, applies to this matter. Finally, in Chapter VI, I will present a summary and conclusions. In view of the fact that after writing my opinion, I received the opinions of my colleagues, and the afterward written by my colleague the President, I will complete my examination with a brief afterward.

            I will now, therefore, present my arguments in order – first things first, and last things last.

Chapter I: Interpreting the Constitutional Text from Within

7.         Basic Law: The Government, and our other Basic Laws, as well, are chapters of our future Constitution. Their interpretation is based, first and foremost, upon their written text, on the assumption that we are treating of a formal constitution, and not an unwritten constitution, which has different rules of design and interpretation. In interpreting the text of a formal constitution (hereinafter: the express constitution), significance must be attributed to the express meaning of the written text, but also to its implied meaning (hereinafter: the implied constitution) (see: Prof. Aharon Barak, On Implication in a Written Constitution, 1-6 (to be published in 45 (3) Mishpatim (2016) (hereinafter: Barak, On Implication in a Written Constitution). The said interpretive framework is delimited: on the one hand, it does not treat of an “open fabric”, like an unwritten constitution that is often influenced by constitutional customs and conventions (see the references in fn. 20 of Barak, On Implication in a Written Constitution), while on the other hand, it does not address the constitution as a code, which is assumed to be comprehensive. This is especially true in our case, where the constitutional project has not yet been completed. Therefore, alongside the constitutional norms that can be derived from the express provisions of the Basic Law, we can also draw additional rules from what may be learned or inferred “between the lines”, as if it were written there – in President Barak’s metaphoric language – “in invisible ink” (see: HCJ 2257/04 Hadash-Ta’al Faction v. Chairwoman of the Central Elections Committee for the 17^th Knesset, IsrSC 58 (6) 685, 703 (2004) (hereinafter: the Hadash Faction case); see and compare: Laurence H. Tribe, The Invisible Constitution (2008) (hereinafter: Tribe); Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live Ny (2012) (hereinafter: Amar).

            This approach is also essentially consistent with Jewish heritage in regard to the relationship between the Written Torah and the Oral Torah, upon which I will not expand here.

8.         I will, therefore, commence with an examination of the relevant, express provisions of the current Basic Law: The Government, and their implications for the matter before us. In so doing, I will refer to the current text of Basic Law: The Government, while, inter alia, bearing in mind the constitutional principle that Basic Law: The Government, as such (like every Basic Law) is undated (for the implications of this, see: CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village, IsrSC 49 (4) 221, 560-561 (1995) per Justice M. Cheshin [http://versa.cardozo.yu.edu/opinions/united-mizrahi-bank-v-migdal-cooper... (hereinafter: the Mizrahi Bank case). Thereafter – in view of the arguments of the Parties’ attorneys and the position of my colleague the President – in Chapter III, I will separately address the influence of the vicissitudes in the “history” of Basic Law: The Government, and the case law that addresses it and its interpretation (and compare: HCJ 4031/94 B’Tzedek v. Prime Minister, IsrSC 48 (5) 1 (1994)).

            I will, therefore, now turn to a survey of the said provisions from the perspective of a jurist examining and interpreting the various provisions of an express constitution from within.

9.         Section 1 of Basic Law: The Government states as follows:

                        What the Government is

1. The Government is the executive authority of the State.

This provision is of great significance, in that it presents (as a heading of the section) the substance of the collective body. On the basis of this section, the Government (as opposed to the Prime Minister) is considered the Executive Branch of the State (see: Shimon Shetreet, The Government: The Executive Branch – Commentary to Basic Law: The Government, 100, 235 (to be published) (Hebrew) (hereinafter: Shetreet, The Executive Branch)). In this regard, our form of government differs, for example, form that of the presidential system of the United States (where the President is the Executive Branch). This fundamental principle must be borne in mind, inasmuch as in the hearing of Nov. 10, 2015, the State Attorney’s representative affirmed, on behalf of respondents 1-6, that according to the legal approach that she asserted, the Prime Minister can also fill the roles of all of the ministers (p. 5 of the protocol). That approach deprives sec. 1 of Basic Law: The Government of all meaning, as it does for sec. 5 of the Basic Law: The Government, which I will address in the following paragraph. It is worth noting in this regard that although, in his book, Prof. Shetreet supports leaving the old interpretation in place (inter alia, in accordance with the quote cited in para. 14 of the opinion of my colleague the President), he is of the opinion that a situation in which the Prime Minister is responsible for a only a few ministries “is inconsistent with the spirit of the Basic Law, according to which the Government, in its entirety, constitutes the Executive Branch” (Shetreet, The Executive Branch, p. 235).

10.       Section 5 of Basic Law: The Government states:

                        The Government is composed of the Prime Minister and other Ministers.

            From this provision we learn several things:

(a)        The collective body (the Government) comprises two elements: the Prime Minister, on one hand, and the Ministers, on the other (on the meaning of “other Ministers”, see subsec. (d), below). It would thus appear that each element of this definition stands on its own, and when it was necessary to view them in common, the framers referred to them as “Government members”. See sec. 5(f) of Basic Law: The Government, which instructs as follows:

The number of Government members, including the Prime Minister, shall not exceed 19, unless the Knesset has expressed confidence in the Government, or has decided to approve the addition of Ministers to the Government, by a majority of at least seventy Members of the Knesset.

            Here we should note that according to the approach presented by the Respondents, according to which the Prime Minister is also a minister, it would have been sufficient to say: “The number of Ministers shall not exceed 19”. Moreover, according to the approach asserted by the attorney for Respondents 1-6, the Prime Minister can himself assume all the roles of the ministers, such that sec. 5(a) would be a dead letter.

(b)        The term employed for the person who heads the Government is “Head of the Government” [Rosh HaMemshala] and not Head of the Ministers or First Minister.[2] I emphasize this because in England, from which we originally drew our constitutional system (see; the Mizrahi Bank case, p. 280; Amnon Rubinstein & Barak Medina, Constitutional Law of the State of Israel, vol. 1: Basic Principles 17 (6^th ed., 2005) (Hebrew)), the role of the Prime Minister developed as a “constitutional convention” that was based upon an institution that came to England from France, where, after the death of Louis XIV (in 1715), the first person termed Premier Minister or Principle Minister was appointed. Pursuant to that, the English Sir Robert Walpole, who was appointed to a parallel position in Great Britain in 1722, was termed Premier Minister, and is thought of as the “First Prime Minister of England”, although his official ministerial title was “The First Lord of the Treasury” (see: Lord Robert Blake, The Office of Prime Minister 6 (1975); Rodney Brazier, Ministers of the Crown 5 (1997) (hereinafter: Brazier); Leopold O. Hood Phillips and Jackson Hood, Constitutional and Administrative Law 358-360 (8^th ed., 2001) (hereinafter: Hood Phillips); A.W. Bradley and K.D. Ewing, Constitutional and Administrative Law 969 (14^th ed., 2008) (hereinafter: Bradley)).

(c)        We would here note that, over the course of years, the British Prime Minister also assumed various ministerial roles (as, for example, Churchill in WWII; however, the last to do so in Britain were Clement Attlee, who also served as Minister of Defence during the first 17 months of his tenure (which continued from July 27, 1945 until Oct. 26, 1951), and Harold Wilson, who also took charge of the Department of Economic Affairs in 1967 – see: Brazier, p. 81 fn. 81, and Bradley, p. 970). This practice was not foreign to the English constitutional culture, inasmuch as the office of prime minister – as noted – developed from the role of a regular minister to whom the other minsters were subject. Formally speaking, to this day the British Prime Minister also carries the titles of First Lord of the Treasury and Minister for the Civil Service (even though that government agency was disbanded in 1981), but this anomaly can be explained by the fact that it is only by virtue of these titles, and British tradition, that the British Prime Minister (under the relevant laws) can receive a salary and a pension (see: Hood Phillips, 309).

            To complete the picture, I would further note that in the area with which we are concerned, even the British “constitutional convention” has been moving in the direction of the new interpretation, and the constitutional rule is now stated, with typical British understatement, as follows:

No Prime Minister, however, is likely to burden himself with another department nowadays (Brazier, p. 81).

            Moreover, in practice, in England (following the tenure of Harold Wilson as Prime Minister from 1964 to 1970), and in Canada (following the tenure of Jean Chrétien as Prime Minister from 1993 to 2003), the view that has developed is that, in principle, the Prime Minister serves only as the conductor of an orchestra, and as a rule, he should not also serve as one of the musicians (see: Harold Wilson, The Labour Government 1964-1970: A Personal Record (1971); Jean Chrétien, My Years as Prime Minister 33 (2010)). This is also the accepted model in Japan in regard to the status of the Prime Minister (see: Peter Gourevitch, Domestic Politics and International Relations, in Handbook of International Relations 309 (Walter Carlsnaes, Thomas Risse & Beth A. Simmons eds. (London: Sage, 2002).

            A similar approach would appear to be expressed in Israel – even in the title of the position (Head of the Government), which embodies a departure from the classic British concept under which the holder of the office is merely “first among equal (ministers)” – primus inter pares. This is also how the matter was interpreted by the Committee for the Examination of the Office of the Prime Minister (whose members were: Yossi Kuchik (chair), Yael Adorn, Prof. David Dry, Prof. Gideon Sapir, and Adv. Dror Strum), which, in its discussion of sec. 5 of Basic Law: The Government, expressed the following opinion:

We are not concerned with a first-among-equals model, but rather with a model of a prime minister who holds a different, preeminent role in relation to his ministers (Committee Report of April 2012, p. 28).

(d)       As noted, the Respondents seek to rely on the wording “The Government is composed of the Prime Minister and other Ministers”, and their emphasis of the word other, indicating that Prime Minister is also a minister. That may be a possible understanding for certain matters (for example, in regard to salary and pension – see: sec. 36 of Basic Law: The Government, and compare the English practice described in ss. (c), above), but I read the emphasis of the word other otherwise.

            In my opinion, what we should infer from sec. 5(a) of Basic Law: The Government is that the framers sought to emphasize that the ministers are different (other) than the Prime Minister – the latter characterized as being sui generis, while the remaining ministers are “other ministers”.

            The interpretation advanced by the Respondents is a two-stage statement: At the first stage, they infer from the fact that sec. 5(a) of Basic Law: The Government speaks of “other ministers” that the Prime Minister is also a minister. At the second stage, they seek to apply every provision of Basic Law: The Government that mentions a minister as referring to the Prime Minister, as well, unless the constitutional text expressly states otherwise (see, for example: secs. 22(a), 24(a) and 31(a) of Basic Law: The Government). In my opinion, this approach suffers from two flaws:

(1)        It “stretches” the “broad” approach to constitutional interpretation (adopted in HCJ 6924/00 Shtenger v. Prime Minister, IsrSC 45 (2) 485 (2001)) beyond what is legitimate, as constitutional interpretation – even if “broad” – must follow the middle path, faithful to the “constitutional spirit”, and be understood to all, without casuistry (and compare: “We the people” of the American Constitution, and see: Amar and Tribe; and Bruce Ackerman, We the People: Foundations (1991); Bruce Ackerman, We the People: Transformations (1998); Bruce Ackerman, We the People: The Civil Rights Revolution (2014); James E. Fleming, Fidelity to Our Imperfect Constitution: For Moral Reading and Against Originalisms, Chap. 7, Fidelity to Our Living Constitution: Honoring the Achievements of We The People (2015).

(2)        It deviates from the subject, inasmuch as the question is not whether the Prime Minister can be considered a minister at certain times and for specific purposes, but rather whether the Prime Minister can serve as the minister responsible for a government ministry alongside his said high office (on the distinction between the two concepts, see, for example: sec. 5(c) and 26(2) of Basic Law: The Government). According to my approach, the conclusion to be drawn in this regard, both from the express constitution and from the implied constitution (as I will demonstrate below), is negative, inasmuch as sec. 5(a) of Basic Law: The Government should be read as follows: “The Government is composed of the Prime Minister and others (who are) Ministers”.

            This approach is specifically expressed in many of the provisions of Basic Law: The Government (in Chap. III, concerning the relevant constitutional history, I will separately address the significance of the fact that the current wording of sec. 5(a) of Basic Law: The Government was found in the original Basic Law: The Government, was then changed in Basic Law: The Government of 1992, and returned to its original wording in Basic Law: The Government in 2001).

            I will demonstrate this presently.

11.       The conception of the uniqueness of the status and role of the Prime Minister gains additional weight to that presented above in sec. 5(b) of Basic Law: The Government, which states as follows:

The Prime Minister shall be a member of the Knesset. A Minister need not be a member of the Knesset [the Deputy Prime Minister, when one is appointed, must also be a member of the Knesset – see: sec. 5(d) of Basic Law: The Government] (emphasis added – M.C.).

            Moreover, sec. 5(c) of Basic Law: The Government, immediately following sec. 5(b), emphasizes and establishes:

A Minister shall be in charge of a Ministry; there may be Ministers without Portfolio.

            It would appear that, here, the term “minister” does not include the Prime Minister, inasmuch as complementary to and separate from what is established in sec. 5(c) of Basic Law: The Government, the provision of sec. 25(a) of Basic Law: The Government informs us that the Prime Minister is in charge of the Prime Minister’s Office. Therefore – by virtue of sec. 25(a) – a deputy minister appointed by the Prime Minister is titled: “a Deputy Minister in the Prime Minister’s Office”.

12.       A conclusion similar to that presented above can also be inferred from the special responsibility provision at the end of sec. 4 of Basic Law: The Government (“a Minister is responsible to the Prime Minister for the field of responsibility with which the Minister has been charged”), which precedes the provision of sec. 5(c) of Basic Law: The Government. This is the personal responsibility of each and every minister to the Prime Minister in regard to the fulfilling of his role as a minister (see: HCJ 5261/04 Fuchs v. Prime Minister, IsrSC 59 (2) 446, 461 (2009) [http://versa.cardozo.yu.edu/opinions/fuchs-v-prime-minister]). The said instruction thus makes it clear why, in general, the Prime Minister cannot serve as a minister responsible for a ministry, inasmuch as in such a case, whence the ministerial responsibility to him?

13.       The approach presented here is also required by the separate declaration of allegiance of the Prime Minister, as such, as opposed to that of all the other ministers, as such, under sec. 14 of Basic Law: The Government. That wording is not appropriate to a prime minister who is also a minister, and indeed, on May 14, 2015, the Prime Minister, Knesset Member Benjamin Netanyahu, only made a declaration of allegiance as a Prime Minister, and did not make  additional declarations of allegiance in his capacity as Foreign Minister, Minister of Health, Minister of Communications, and Minister of Regional Coordination (on the importance of the wording of the declaration of allegiance, see: HCJ 400/87 Rabbi Meir Kahane v. Speaker of the Knesset, IsrSC 41 (2) 729 (1987)).

            Moreover, the provision regarding an acting prime minister, in sec. 16(b) of Basic Law: The Government, does not provide an arrangement for an acting minister in a ministerial position held by the Prime Minister. This, too, would appear to show that such doubling-up is impossible.

14.       The Respondents’ approach is also contradicted by the provision of sec. 37(b) of Basic Law: The Government, which establishes:

A law may empower the Prime Minister or a Minister to make regulations in a matter decided by agreement (emphasis added – M.C.).

            Under the Respondents’ approach, the above “or” is apparently superfluous, inasmuch as they read “Minister” as including the Prime Minister, and it is, therefore, mystifying why, under their approach, the section is worded as it is.

15.       The Respondents’ approach also raises serious practical difficulties, as I will explain in detail:

(a)        Section 42(b) of Basic Law: The Government instructs as follows:

The Knesset may, at the request of at least forty of its members, conduct a session with the participation of the Prime Minister, pertaining to a topic decided upon; requests as stated may be submitted no more than once a month.

            (Section 45 of the Knesset Rules sets out the special arrangements that apply to such sessions).

            The reason for the provision is clear – to require the Prime Minister to appear before the Knesset in regard to a matter of importance to the public agenda, provided that the conditions of sec. 42(b) of Basic Law: The Government are met (see: Shetreet, The Executive Branch, pp 517-518).

            Alongside this provision, sec. 42(c) of Basic Law: The Government states:

The Knesset, and any of the Knesset committees within the framework of their tasks, may obligate a Minister to appear before it, and may obligate a Deputy Minister to appear before it, by means of, or with the knowledge of, the Minister who appointed him (emphasis added – M.C.).

            (For the interpretation of the section, see: Shetreet, The Executive Branch, p. 518).

            Now, when the Prime Minister also serves as a minster responsible for a ministry, can the Knesset, and any of its committees, obligate the Prime Minister to appear before it in his capacity as a minister, and not in accordance with the procedure established under sec. 42(b) of Basic Law: The Government? I would think that the answer must be in the negative, inasmuch as sec. 42(b) would appear to be a lex specialis for the Prime Minister. Thus, clearly, Basic Law: The Government did not contemplate a situation in which, as a matter of course, the Prime Minister would also serve as a minister responsible for a ministry, and therefore, sec. 42(b) of Basic Law: The Government is not only exclusive and exhaustive, but it also does not treat of a situation of the kind a double role that is the subject of this proceeding.

(b)        Neither Basic Law: The Government, nor The Government Law, 5761-2001, provides any provision concerning the voting of a prime minister who is also a minister responsible for a ministry. How, therefore, should his vote be counted? Once, or in accordance with the number of his ministerial appointments, in addition to his vote as Prime Minister? This is only because such a situation was not foreseen as a general possibility, and was not provided for by the framers and the legislature. Yet, such votes can be of critical importance for the Government, in the Ministerial Committee for National Security, and in other ministerial committees (the Attorney General addressed this matter in Directive no. 1.11.01 of Dec. 1, 1985, which was last updated in May 2015, in which he arrived at the conclusion that the number of votes in the Government is equal to the number of members of the Government, and are apportioned as one vote for each member of the Government).

(c)        Let us assume, for example, that the Prime Minister assumed the post of Minister of the Economy. As such, he is supposed to serve as a member of the Judges’ Election Committee for Labour Court Judges (see: sec. 4(b) of Basic Law: The Judiciary, and sec. 4 of the Labour Courts Law, 5729-1969). In such a case, would he serve under the Minister of Justice, who is meant to serve as chair of the Committee? Once again, it would appear that the law provides no solution for such a situation, inasmuch as the legislature’s assumption was that such a double role was not normally possible (the situation created by the operation of sec. 24(b) of Basic Law: The Government is different and resolvable due to its temporary nature under sec. 24(c) of Basic Law: The Government, which makes it possible to postpone the sessions of the Elections Committee for a period of up to three months, or by a transfer of authority under sec. 31(b) of Basic Law: The Government).

16.       To all the above provisions, we should add the sections in Basic Law: The Government that treat of the appointment of deputy ministers and their removal from office (secs. 25 and 26 of Basic Law: The Government), which condition the appointment upon the action of “the Minister in charge of the office” and the consent of the Prime Minister (as well as the approval of the Government), while in a case of termination by the Prime Minister, it is contingent upon prior notice of that intention to the Government and the minister who appointed the deputy minister. This, too, would seem to lead to the conclusion that the Prime Minister and the minister in charge of the ministry cannot usually “merge” into one personality.

17.       Up until now, I have presented various provisions of Basic Law: The Government that indicate that serving as Prime Minister is inconsistent with serving as the minister in charge of a government ministry. I will now attempt to show “the crooked from the straight”, inasmuch as Basic Law: The Government sets out exceptions to the rule cited at the outset, and this demonstrates that the Prime Minister can serve as the minister in charge of a ministry only in the framework of those exceptions. These provisions must be narrowly construed, and we must conclude in their regard that expressio unius est exclusio alterius (see: the opinion of my colleague the President in HCJ 10017/09 Dolev Foundation for Medical Justice v. Government of Israel (May 25, 2010) (hereinafter: the Dolev Foundation case), and my opinion in HCJ 2944/10, HCJ 8692/11 Avraham Kuritzky v. Labour Court (Oct. 13, 2015), and the petitions for a Further Hearing on that judgment (HCJFH 7730/15; HCJFH 7649/15) which were dismissed on Feb. 13, 2016; a further discussion of this principle will be presented in Chap. III).

            The provision under discussion is that established under sec. 24(b) of Basic Law: The Government, stating:

Should a Minister be temporarily incapable of discharging his duties, the Prime Minister or another Minister appointed by the Government will discharge his duties.

            Section 24(c) of Basic Law: The Government completes the said arrangement, stating:

The period of tenure of an Acting Minister under subsection (b) will not exceed three months.

            The two provisions, taken together, show that when a minister ceases to serve, or is incapable of discharging his duties, the default arrangement is that the Prime Minister assumes his duties (see: Shetreet, The Executive Branch, p. 362) for a period that shall not exceed three months, and without a need for Knesset approval, which would otherwise be required (but see sec. 10(b)(6) of The Government Law, 5761-2001, which requires that, in such a case, the Government publish notice of the appointment of an acting minister in the Official Gazette).

            From this we can infer that, in addition to his high office, the Prime Minister also holds a a potential office – to serve as an acting minister for a period of three months (if the Government has not decided otherwise) in place of a minister who has ceased or is temporarily unable to carry out his duties. Beyond that, it would appear that he cannot serve as a minister in charge of a ministry, inasmuch as such parallel service in other circumstances lacks grounding in Basic Law: The Government, as we held in regard to a “Deputy Minister with the status of a Minister” (the section that expressly authorized this in the past in the previous Basic Law: The Government was, as noted, rescinded, the consequences of which I will further address at greater length in Chapter III, below).

            At this point we should note that even recently (while this Petition was pending), the authority established under sec. 24(b) of Basic Law: The Government was employed twice: Once, after the Minister of the Economy, Knesset Member Aryeh Makhlouf Deri, resigned from that post on Nov. 1, 2015, and again after the Minister of the Interior, Knesset Member Silvan Shalom, resigned from his post on Dec. 24, 2015. Then, the Prime Minister assumed their places when their resignations went into effect (in addition to his then being Prime Minister, as well as the minister in charge of the following ministries: the Ministry of Foreign Affairs, the Ministry of Communications, and the Ministry of Regional Cooperation).

            This serves to show that further authority lacking statutory grounds should not be added to the potential authority imposed by law as a solution for the exigencies that may arise from time to time, which, not to mention,  places a burden upon the Prime Minister in the case of its (generally unforeseen) occurrence.

            In this regard, we hear the echo of Jethro’s warning to Moses:

The thing you are doing is not right; you will surely wear yourself out, and these people as well. For the task is too heavy for you, you cannot do it alone (Exodus 18:17-18).

18.       A partial summary up to this point leads, in my opinion, to the conclusion that the express constitution (Basic Law: The Government) does not grant the Prime Minister authority, as such, to serve simultaneously as a minister in charge of a government ministry, except in the situations set out is secs. 24(b) and (c) of Basic Law: The Government (serving as an acting minister in place of a minister who has ceased or is temporarily unable to carry out his duties). The question remains whether the implied constitution, to the extent that it exists, might change that conclusion. I will focus on that question and what derives therefrom, below.

19.       My colleague the President sets out from a different point of departure than mine. She is of the opinion that the current Basic Law is silent on the question of the Prime Minister’s authority to serve as the minister in charge of a ministry in addition to his high office, as opposed to the view that I expressed, according to her analysis, in the Medical Association case in which, in her opinion, my position was that the silence of current Basic Law should be understood as a negative arrangement. According to her approach, the Basic Law’s silence does not represent a negative constitutional arrangement, but rather a positive constitutional implication, in the sense of the distinctions proposed in the writings of Prof. A. Barak (see paras. 5 and 6 of her opinion). Moreover, according to her opinion, we are not concerned with a question of authority, but rather a question concerning the Prime Minister’s broad discretion in forming a government (which, as we know, can be challenged separately on the grounds of unreasonableness and disproportionality, particularly when the quantity becomes a matter of quality).

            Thus, both my colleague and I agree that an implied meaning can be inferred from the express meaning of the constitutional text, but while I am of the opinion that we are concerned with a negative arrangement, my colleague the President is of the opinion that we are concerned with a positive implication. Thus, she holds the view that the explicit arrangement established in the Basic Law can also apply to a subject that is not expressly addressed by it, and in her opinion, that is the case before us (this approach must still answer the question of why the constitutional implication deviates from the three-month period established in sec. 24(c) of Basic Law: The Government). My colleague the President’s interpretive conclusion is required, under her approach, by the purposes grounding the current Basic Law, and by the customary practice in this regard. We are, therefore, in disagreement not on the very existence of the theory of implication, but rather on its application to the matter before us and its scope. I will, therefore, dedicate a few preliminary remarks to this subject before proceeding to examine the disagreement on its merits.

Chapter II: The Theory of Implied Constitutional Interpretation

20.       Implication theory has respectable philosophical, linguistic (in the field of pragmatics), logical, and legal roots (see: Barak, On Implication in a Written Constitution).

            I will now present two examples that illustrate the need for implication theory and its consequences – as a negative arrangement or a positive implication:

(a)        Grice, who developed the foundations of pragmatics, gives the following case as an example:

A philosophy professor is asked by one of his students to write a letter of recommendation for a teaching position; in his recommendation, he writes that the student has good command of English and that he has regularly attended classes. It seems that we should have no difficulty in inferring from this, by implication, that the professor does not think much of the student’s philosophical abilities. This meaning – a poor opinion of philosophical ability – is not learned directly from the language of the professor’s statement; it is implied from the context in which it was made (see: Paul Grice In the Way of Words 33 (1989); the above example is taken from its presentation in Barak, On Implication in a Written Constitution, p. 2 [English: Aharon Barak, On Constitutional Implication and Constitutional Structure, in Philosophical Foundations of Constitutional Law, David Dyzenhaus & Malcolm Thorburn, eds. (Oxford, 2016)]).

(b)        In his book (cited in para. 7, above), Professor Amar analyzes the procedure for the impeachment of the President of the United States under the American Constitution. The impeachment proceedings are conducted before the Senate, but while the person who generally presides over Senate sessions is the Vice President on the United States, the Constitution provides that when the President of the United States is tried, the Chief Justice of the Supreme Court shall preside. The reason is obvious – the Vice President has an interest in the result of the proceedings. However, the Constitution does not comprise special provisions for impeachment proceedings in regard to the Vice President, which are also conducted before the Senate. Is it conceivable that the Vice President would preside over the Senate at his own trial? The implied answer requires that we adopt an arrangement similar to that applying to the impeachment of the President, and we thus employ the doctrine of positive implication (see: Amar, pp. 5-13).

21.       We should note that the legislature’s “silence” can sometimes be understood in other ways. Sometimes, that “silence” constitutes a lacuna. At other times, the “silence” represents refraining from taking a stand on a legal issue, while leaving the matter to normative systems external to the express law (see: HCJ 4267/93 Amitai – Citizens for Good Governance and Moral Integrity v. Yitzhak Rabin, Prime Minister of Israel, IsrSC 47 (5) 441, 457, 475 (1993)).

In light of the fact that the matter before us was already addressed in the past incarnations of Basic Law: The Government, we are not faced with a lacuna or a desire to refrain from taking a stand (compare: HCJ 2458/01 New Family v. Approvals Committee for Surrogate Pregnancies, IsrSC 57 (1) 419, 439 (2002)), but rather one of two possibilities: a “negative arrangement” or a “positive implication”, even if we are concerned with a chance omission. To which category must we assign the subject of the petition, and what tools will help us reach the correct conclusion? On the basis of these questions, we shall ground our conclusion.

22.       No one would appear to disagree in this regard that the internal and external context is decisive. In a constitutional environment, the internal context relies upon the wording, the structure of the constitution as whole, and upon the purposes of the constitution. The external context comprises the circumstances external to the language of the constitutional text. These extend, inter alia, to the constitutional and case-law history, constitutional values, and comparative law (see: Barak, On Implication in a Written Constitution, pp. 23 and 28; Stephen Breyer, Making Our Democracy Work, xii-xiv (2010)). Beyond that, the overall rationality is of great importance (see: Asa Kasher, Gricean Inference Revisited, 29 Philosophica 25 (1982)), or as my colleague Deputy President E. Rubinstein put it: “Common sense is also a member of the club” (see, for example: CrimFH 5852/10 State of Israel v. Shemesh, para 12 (Jan. 9, 2012); CrimA 6833/14 Nafa v. State of Israel, para. 68 (Aug. 31, 2015); CA 5884/08 Kfar Vitkin v. National Insurance Institute, para. 14 (Aug. 26, 2010)).

23.       By means of the above criteria, I will try to show that the matter before us indeed concerns a negative arrangement (and not a positive implication), and that the recent constitutional developments in in Israel and abroad, as well as our fundamental constitutional values, require this conclusion. Here it is apt to note that according to the approach of Prof. Barak in his aforementioned article:

Constitutional change may directly change the implied meaning by an explicit statement that alters it. Constitutional change may also change the implied meaning indirectly, inasmuch as adding constitutional text results in an interpretive conclusion that negates the existence of an implied meaning or that changes its content (Barak, On Implication in a Written Constitution, p. 14, fn 84).

            Such changes indeed took place in the context before us, and those changes transformed the new interpretation from merely preferable to the only interpretation that is now correct.

            I will now proceed to describe this in an orderly fashion.

 

Chapter III: The Relevant Constitutional and Case-Law History

24.       The relevant constitutional and case-law history would appear to support my approach. I will review it below, while relating to the Parties’ arguments:

(a)        The current Basic Law: The Government (Basic Law: The Government, 5761 Sefer HaHukim 158; above and hereinafter, the current Basic Law: The Government) was established by the Knesset on March 7, 2001, and applied to the elections and the formation of the government as of the elections for the 16^th Knesset. It repealed the previous Basic Law: The Government (Basic Law: The Government, 5753 Sefer HaHukim 214; above and hereinafter: the previous Basic Law: The Government), which was established by the Knesset on March 18, 1992, and which was premised upon the concept of direct, personal election of the Prime Minister.

            Section 33(d) of the previous Basic Law: The Government clearly and unambiguously stated as follows:

                        The Prime Minister may also function as a Minister appointed over an office.

(b)        The same Basic Law included another provision (sec. 36 of the previous Basic Law: The Government), which addressed a special case – an acting Minister – and it, too, authorized the Prime Minister to serve as a minister, establishing as follows:

(a)        Should the Minister cease to serve, be absent from the country, or be temporarily incapable of discharging his duties, the Prime Minister or another Minister appointed by the Prime Minister will discharge his duties until the Minister resumes his regular duties or until the appointment of his replacement; the Prime Minister will give notification to the Government and to the Speaker of the Knesset regarding the appointed acting Minister, and the Speaker of the Knesset will give notice to the Knesset.

(b)        The period of tenure of an Acting Minister who ceased to serve as stated under subsection (a) will not exceed three months. At the end of that period, the Prime Minister, with the approval of the Government, may appoint a Member of Knesset as a Minister to the position vacated by the Minister as aforesaid, for a period not to exceed one year, and his appointment shall not require approval of the Knesset.

(c)        Without any prior discussion of the matter in the Knesset plenum or the Constitution, Law and Justice Committee, the current Basic Law: The Government entirely omitted the provision of sec. 33(d) of the previous Basic Law: the Government, and established that: “The Prime Minister may also function as a Minister appointed over an office”. It also changed the arrangement in regard to an acting minister, establishing, in sec. 24, as follows:

a) Should a Minister, except for the Prime Minister, be absent from the country, the Government can charge another Minister to take his place. The Acting Minister will discharge the Minister's duties, in all or in part, as determined by the Government.

(b) Should a Minister be temporarily incapable of discharging his duties, the Prime Minister, or another Minister appointed by the Government, will discharge his duties.

(c) The period of tenure of an Acting Minister under subsection (b) will not exceed three months.

            From the affirmative statement of this section, which positively states that the Prime Minister can serve as an acting minister under the conditions established in the section, it would appear that we can learn – as I showed in para. 17, above – a negative statement in regard to other situations, particularly after the repeal of the former section that permitted simultaneous service even under normal circumstances. (For a detailed discussion of the significance of an omission in the course of amending a Basic Law, including the inference expressio unius est exclusio altrius, I refer, without further discussion, to the Hadash Faction case, the Dolev Foundation case, as well as to HCJ 869/92 Nissim Zvili v. Chairman of the Central Elections Committee for the Thirteenth Knesset, IsrSC 46 (2) 692, 706-707 (1992), in which (then) Justice A. Barak inferred a negative arrangement from the absence of any mention of a certain situation in the law, and ruled that in such a case:

                        In any case, a judge cannot compensate for what the legislature did not address.

            Prof. Goldsworthy, one of the great researchers in the field of constitutional implication theory, expressed the opinion that similar weight should be given to the framer’s decision to omit sections from the constitution (as in the case of sec. 33(d) of our previous Basic Law: The Government) as to the drafting of existing sections, their boundaries, and the structure of the constitution (see: Goldsworthy, Constitutional Implication Revisited, 30 Queensland L.J. 9, 21 (2011). As for a constitutional situation like that before us, he states the following:

When the provisions of a legal instrument expressly cover only some instances of a potentially broader class, it is usually more plausible to infer that its limited coverage was deliberate, and to ascribe to it an implication that it excludes members of the class not expressly covered. That implication is expressed by the maxim expresio unius est exclusio alterius.

Judges are surely bound not only by the framers’ ends, but by the means they selected to achieve those ends. That is why it has been said that the framers’ decisions to omit provisions from the Constitution are entitled to as much respect as their decisions to include provisions. Otherwise a constitution is just a set of abstract objectives, which the judges can choose to implement in any way they think fit (ibid., p. 24).

25.       The Respondents try to explain that sec. 33(d) was included in the previous Basic Law: The Government but omitted from the current Basic Law: The Government because, following the move to direct election of the Prime Minister, the Prime Minister constituted an institution materially different from other ministers, whereas, upon the repeal of direct elections, he returned to being merely “first among equals”. Therefore, according to their approach, the framers returned to the formulas they had adopted in the original Basic Law: The Government, according to which – under this approach – the Prime Minister is one among the ministers (thus in sec. 5(a) of the current Basic Law: The Government, and thus in the sections addressing delegation and assumption of powers – now secs. 33 and 34 of the current Basic Law: The Government).

            Unfortunately, this explanation does not answer the questions I raised in regard to this proposition in Chapter I (in the context of the interpretation of Basic Law: The Government from within). For example, how is this compatible with the personal responsibility of a minister in charge of a ministry to the Prime Minister (the end of sec. 4 of Basic Law: The Government). Moreover, this approach of the Respondents ignores the dramatic significance for the matter before us that must be afforded to the amendment of Basic Law: The Government of March 11, 2014 (Sefer HaHukim 2440 of 17 Adar II 5774 – March 19, 2014, p. 346) in regard to an expression of non-confidence in the Government, as I shall presently explain.

26.       In the said amendment (hereinafter: the Governance Amendment), the framers adopted the concept of full constructive non-confidence, which the proposers of the Amendment “imported” from the German and Belgian constitutional law systems, with certain changes (before that, we had a partial constructive non-confidence approach, by which the initiators of a no-confidence motion were not required to propose an alternative Government, or express confidence in it, but rather only propose a potential formateur, who might form a new Government, and pass a no-confidence motion against the reigning Government by a majority of the members of the Knesset (see: Basic Law: The Knesset (Enhancement of Governance) (Amendment) Bill, Hatzaot Hok HaKnesset 512 of 15 Av 5773, July 22, 2013, pp. 46-47; the statement of the Legal Adviser to the Knesset Constitution, Law and Justice Committee in its session of Nov. 25, 2013, at p. 29; on the history of the no-confidence apparatus in Basic Law: The Government, also see: Shetreet, The Executive Branch, 380-386)).

            The current wording, which comprises full constructive non-confidence, establishes as follows, under sec. 28(b) of the current Basic Law: The Government:

An expression of no-confidence in the Government shall be by means of a resolution of the Knesset, adopted by a majority of its Members, to express confidence in another Government that has announced its basic lines of policy, its composition and the distribution of functions among the Ministers, as stated in section 13(d). The Government is constituted when the Knesset has expressed confidence in it, and the Ministers shall thereupon assume office.

            This is a “mirror image” of the provisions of sec. 13(d) of the current Basic Law: The Government, which provide as follows:

When a Government has been formed, it shall present itself to the Knesset, shall announce the basic lines of its policy, its composition and the distribution of functions among the Ministers, and shall ask for an expression of confidence. The Government is constituted when the Knesset has expressed confidence in it, and the Ministers shall thereupon assume office.

            In view of the above provisions, if the Respondents’ proposition is correct, then after the establishment of full constructive non-confidence in the Governance Amendment, it should be sufficient – for the purposes of sec. 28(b) of Basic Law: The Government – that the initiator of a no-confidence motion name only a proposed alternative prime minister (who would also serve as the minister in charge of the other ministries, inasmuch as Respondents 1-6 declared, as noted, that, according to their approach, the Prime Minister can fulfil the roles of all the ministers (see para. 9, above)). We have thus – by means of the approach of Respondents 1-6 – returned to the former constitutional situation, under which it was sufficient that 61 Members of Knesset join together to topple the Government, and propose a potential prime minister, and the purpose of the Amendment will be frustrated.

            It would seem superfluous to say that we should not interpret the composition of an existing Government that receives the Knesset’s confidence differently from the formation of a proposed alternative Government in the course of a no-confidence vote under the Governance Amendment. Thus, the entire scaffolding upon which the Respondents built their arguments collapses, and the new interpretation stands alone and is as the necessary result.

            We should note that in German constitutional law – from which, as noted, we drew the principles of the concept of full constructive non-confidence – the interpreters arrived at a similar conclusion (in the German post-war period, as since the days of Chancellor Conrad Adenauer (in the 1950s and thereafter) the German Chancellor has not assumed the role of a minister in charge of a ministry). I will address this in Chapter IV.

27.       Moreover, in the framework addressed in this chapter, we consider not only changes introduced to the Basic Law, but also constitutional case law. Therefore, we should recall that, as the Petitioner noted in the hearing, objections against the Prime Minister’s serving as a minister in charge of an ministry were raised even before the Medical Association case, in petitions filed by (then)[3] Adv. Yariv Levin and the Movement for Quality Government in Israel against Prime Minister Ehud Olmert (HCJ 7375/06 and HCJ 9617/06 respectively). The petitions challenged Prime Minister Olmert’s serving as Minister of Welfare, and the petitioners argued that such parallel service was not legally possible under Basic Law: The Government, and that the such service was improper from a practical point of view due to the great importance of the Welfare portfolio.

            In his petition, (then) Advocate Levin argued, inter alia:

Can it be argued that this is a “negative arrangement” that prevents the Prime Minister from serving simultaneously as a minister? To the best of the Petitioner’s knowledge, this question has not yet been addressed by this Court. However, the Petitioner is of the opinion that a situation in which the Prime Minister holds a portfolio in addition to his role is undesirable, and inherently poses a situation of conflict of interests between his role and responsibility as Prime Minister, and the interests of the ministry of which he is in charge. This is so due to the nature of the job of the Prime Minister, which requires that he see “the big picture” and in many cases, decide upon the relative priorities among the interests of different government ministries. Clearly, it would be difficult for the Prime Minister to carry out this function when he must make such a decision in regard to a ministry over which he is in charge. Therefore, the Petitioner is of the opinion that there is good reason for the express provision of section 24 of Basic Law: The Government in regard to placing a government ministry in the hands of the Prime Minister by means of a temporary appointment, as opposed to the absence of such a provision for a permanent appointment. It would seem that even the legislature was of the opinion that a situation in which the Prime Minister also serves as a minister in a government ministry is not the desirable, appropriate situation for the proper functioning of the ministry and the government as a whole (pp 15-16 of the above petition in HCJ 7375, para. 44(c)).

            A preliminary hearing was held in those petitions on Jan. 29, 2007 (before President D. Beinisch, Deputy President E. Rivlin, and Justice D. Cheshin), during which the Government informed the Court that a Minister of Welfare would soon be appointed. Therefore, a brief judgment was issued that very day, in the following language:

In light of the State’s notice that a Minister of Welfare will soon be appointed, and at the suggestion of the Court, the Petitioners withdrew their petitions while reserving their arguments. The petitions are dismissed.

            Thereafter, on March 19, 2006, a Minister of Welfare was indeed appointed (Knesset Member Yitzhak Herzog).

            It would appear that the said sequence of events and the above quote speak for themselves. This chapter has thus proven that even the constitutional and case-law history lead to the conclusion that, in general, simultaneous service by the Prime Minister as a minister in charge of a ministry is prohibited.

            In the following chapter, I will show that even the relevant constitutional values and inspirations from comparative law all lead to the same conclusion.

 

Chapter IV: The Underlying Constitutional Values, and the Implications of Comparative Law for the Matter before Us

28.       In his book (above, para. 7), Professor Amar, one of the great constitutional jurists in the United States, and one of the developers of the theory of constitutional implication there, explained that a constitution should not be read literally, but rather faithfully to its framers and its beneficiaries (the citizens), and that this should be accomplished in light of the constitutional values that ground it. He writes in this regard (ibid., p. 6):

The key that unlocks the door is the simple idea that no clause of the Constitution exists in textual isolation. We must read the document as a whole. Doing so will enable us to detect larger structures of meaning — rules and principles residing between the lines. For example, although no single clause explicitly affirms a “separation of powers,” or a system of “checks and balances,” or “federalism,” the document writ large does reflect these constitutional concepts. This much is old hat.

            (Further on, he argues that it is sometimes possible to infer an implied meaning contrary to the explicit text of the Constitution, in which regard I agree with the opinion of Prof. Barak, who is of the view that that would be going too far, inasmuch as the implied meaning – even as analytically defined – cannot contradict the explicit meaning (see: Barak, On Implication in a Written Constitution, pp. 6 and 16)).

            I will now turn to an analysis of the relevant constitutional values, which all lead to the understanding that the Prime Minister cannot generally serve as a minister in charge of a ministry.

29.       What are those fundamental values underlying the existing Basic Laws that lead to the conclusion that the Prime Minister cannot generally serve as a minister in charge of a ministry? We are concerned with three such principles:

A.        The concept of checks and balances, and the principle of the separation of powers, which instruct us that the Prime Minister is precisely what his title states – no more and no less. The comparative law sources of inspiration are: Prime Ministers of Common Law countries, and more recently – following our adoption of the German apparatus of full constructive non-confidence – the status of the German Chancellor, developing a model of a “Democratic Prime Minister”, is worthy of note.

B.        The principle of legality, which holds that, as a rule, every governmental act requires legal authorization, without which there is no authority (as opposed to this, an individual may do anything, unless his liberty or rights have been lawfully restricted).

C.        Subservience of the institutional Basic Laws to the basic rights anchored in the value-based Basic Laws (Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation), and all that derives therefrom.

            I will now elaborate and explain.

A.        The Concept of Checks and Balances and the Principle of the Separation of Powers

30.       Various models have been developed in the democratic world – some more successful and some less – in regard to the person who stands at the head of the Executive Branch. In Israel – with the exception of the period of direct election of the Prime Minister – the Prime Minister is not directly elected by the public, but rather by the Knesset by means of a vote of confidence or no-confidence in the Government formed (after establishing a coalition). In this regard, the election of the Israeli Prime Minister is similar to that of the German Chancellor (see: Shetreet, The Executive Branch, p. 26), and to the procedure for electing the Prime Minister in England and most other Common Law countries. Thus, we can examine the models that determine the status and functions of the prime ministers of those countries, and draw inspiration in regard to the matter before us.

31.       As I showed in para. 10(c) above, the British Prime Minister serves, at the very least, as the conductor of an orchestra, and therefore, over the last decades, he does not, as a rule, assume any additional role of a minister in charge of another government ministry. This rule was the result of the development of British constitutional convention and the tremendous burden borne by the prime minister of a modern state, as well as in consideration of the need that the prime minister appear “neutral” in regard to the ministries, and decide the disagreements that arise among them without any personal involvement.

32.       In Germany, too – which unlike England, has a formal constitution – most constitutional interpreters are of the opinion that the new German constitution (established after the Second World War) does not permit such parallel roles. The matter arose for discussion there after Chancellor Konrad Adenauer also served as Foreign Minister in the years 1951-1955 (the matter was not challenged then in court), although it should be noted that since 1955, the practice was not repeated.

            In his book, Prof. Roman Herzog, who served as President of the German Constitutional Court and later as President of Germany, expresses the view that (by virtue of article 64 of the German Constitution) the German chancellor cannot serve as a minister in charge of a government ministry, as he must present to the German President “the list of his Ministers”, and he cannot include himself in that framework. Moreover, the chancellor is not supposed to trespass the boundaries of the Government, which is the Executive Branch (this reason is similar to the opinion of Prof. Shetreet that was cited above in para. 9) (see: Herzog, in Manuz/Durig. Grundgesetzkommentar, Band 1, May 2008, Art. 64 GG, para 1-7).

            A similar (if less decisive in regard to legality) view is expressed by Prof. Busse, who is of the opinion that the reason for the said position is that the chancellor must be “neutral” among his ministers and among the various ministries (see: Busse, in Berliner, Kommentar zum Grundgesetz, C art. 4 GG, p.10 et seq.).

            Prof. Schenke holds a view similar to that of Prof. Busse, but according to his approach, the reason is the burden borne by the chancellor (see Schenke, in Bonner Kommentar zum Grundgesetz, December 2014, Art. 64 GG, P.59 et seq., fn 134).

            Despite differences in nuance in their views, all the German scholars are united in the view that the model of the German chancellor is one of a “Democratic Prime Minister”. This model yields the following rules:

1. The prime minister must always be conscious of the principles of democracy, and delineate the government’s policy for his ministers, while remaining “neutral” among them.
2. The prime minister must avoid institutional conflicts of interest in his relationship with the various government ministries.
3. The prime minister must perform optimally, such that the burden he bears not impair his ability to duly carry out his duties, and not impair the necessary relationship between authority and responsibility.

33.       A similar constitutional approach has also developed of late in the United States, expressed both in the written constitutions of the states and in constitutional implication, by which the principle of separation of powers must be enhanced and applied even to the personal separation between the holders of different offices (see: Steven G. Calabresi & Joan L. Larsen, One Person, One Office: Separation of Powers or Separation of Personnel?, 79 Cornell L. Rev. 1045, 1047 (1994)).

            In this regard, the authors write as follows:

[t]wo hundred years of American history have added their gloss, and today we largely understand the separation of powers to include a one person, one office codicil. Unwritten traditions disfavor plural office holding of any kind. These traditions, together with the Incompatibility Clause itself, now form a vital part of America's structural “Constitution” (ibid., pp. 1047-1048).

            Further on, they add:

These facts make clear that the rule of one person, one office is fast becoming the constitutional norm in America…America has progressed from a separation of powers to a separation of institutions to a separation of personnel (ibid., p. 1155).

34.       In view of the above comparative law sources, it can be said that even our concept of the prime minister, in accordance with Basic Law: The Government, should be conceived in light of the model of a “Democratic Prime Minister” who is a “conductor” of an “orchestra of ministers” (but is not one of them). In this regard, we should strictly ensure that conduct under the color of the current Basic Law: The Government not indirectly lead to the regime introduced by the former Basic Law: The Government, which approached, to some degree, a “presidential model”. Here we should note that “parallel tenure” also raises political science problems in the current regime, inasmuch as it “sends a message” both to serving ministers and to the opposition that they have a “chance”, so to speak, to be appointed to vacant offices, and this presents a latent impairment of their independence (see and compare: the statement of Advocate Sigal Kogut in the session of the Knesset Constitution, Law and Justice Committee on Oct. 21, 2013, concerning the Governance Amendment (pp. 13-14)).

35.       In our context, we should also bear in mind that the prime minister carries a burden that is unlike almost any other in the world. In addition to his tasks under Basic Law: The Government and the Government Law, 5761-2001, he is responsible for, runs and directs the National Security Council in accordance with the National Security Council Law, 5768-2008, he is responsible for the General Security Service under the General Security Service Law, 5762-2001, as well as in charge of the Mossad, the Atomic Energy Commission, and the Biological Institute. In addition, the prime minister is granted direct powers, inter alia, under the Secret Monitoring Law, 5739-1979, the Archives Law, 5715-1955, the Administrative Courts Law, 5752-1992, the Government Companies Law, 5735-1975, the Jerusalem Development Law, 5748-1988, the Statistics Ordinance [New Version], 5732-1972 (by virtue of which he is in charge of the Central Bureau of Statistics), and he is responsible for the implementation of the Anti-Drugs and Alcohol National Authority Law, 5748-1988 (see: Shetreet, The Executive Branch  p. 312).

            Thus we find that adding to the functions of the Prime Minister – who is already overburdened by law -- not on the basis of statutory provisions as above, but by his additional appointment as a minister in charge of government ministries (and here not one, but four!) impairs governance and goes to the very root of authority, as no person on earth, as gifted as he may be, can simultaneously perform so many tasks. Moreover, it is only natural that, under such circumstances, the deputy ministers who were appointed by the Prime Minister, were, in practice, granted the status of “Deputy Minister with the status of a Minister”, an institution that we abolished in our Partial Judgment.

            The above phenomenon also leads to an improper separation between authority and responsibility. My colleague Deputy President E. Rubinstein warned of such situations in the past in his article Basic Law: The Government in its Original Form – Theory and Practice, 3(2) Mishpat Umimshal 571, 589-590 (written in memory of the late Prime Minister Yitzhak Rabin), and saw them as “an absolutely improper situation from both a legal and public point of view”, which “empties the concept of responsibility of any material content” (ibid., p. 590).

            In his book Making Our Democracy Work (2010), Associate Justice of the United States Supreme Court, Prof. Stephen Breyer, asserts that in such situations, it is the role of the Court to put things right in order to allow democracy to function, as is required by the Constitution, and as is expected of leaders by the citizenry.

 

B.        The Legality Principle

36.       The legality principle states that an administrative authority has only the powers granted it by law (see: HCJ 5936/97 Dr. Oren Lam v. Mr. Ben Tzion Dal, Director General of the Ministry of Education, Culture and Sport, IsrSC 53 (4) 673 (1999) [http://versa.cardozo.yu.edu/opinions/lam-v-dal] (hereinafter: the Lam case); HCJ 1405/14 Prof. Shimon Slavin v. Deputy Director General of the Ministry of Health (Aug. 7, 2014) (hereinafter: the Slavin case); HCJ 6665/12 E-CIG Ltd. v. Director General of the Ministry of Health (Dec. 12, 2014) (hereinafter: the E-CIG case)).

            According to the approach presented by Prof. Itzhak Zamir in his book The Administrative Authority, vol. 1, 73 (2^nd expanded ed., 2010) (Hebrew), the said principle derives from the very nature of democracy, stating:

Democracy grants sovereignty to the people. It is the people who grant the Government, and every other administrative authority, whatever authority they hold. It does so by means of laws. The powers that the law grants an authority are all the powers that the authority has. Thus, the law is not only the source but also the limit of every function and every power of every authority.

There are two aspects to the principle of legality in administrative law: the principle requires that every administrative act first be authorized by law, and second, be in accordance with the law [ibid., p. 73; and also see: CA 1644/04 Ramle Municipality v. Banks’ Clearing House Ltd., IsrSC 60 (3) 330 (2205); and see: Daphne Barak-Erez, Administrative Law, vol. 1, chap. 4 (2010) (Hebrew)].

            From a constitutional perspective, this principle has a number of exceptions, the most important of which for the matter before us is that which may legitimate an administrative action when, and only when, the action is required by constitutional implication, and the constitution does not expressly deny such authority (see: Barak, On Implication in a Written Constitution, pp. 18-19).

37.       In the matter before us, even the Respondents agree that after the repeal of sec. 33(d) of the former Basic Law: The Government, the Prime Minister does not have express authority generally to serve as a minister in charge of a ministry, as well, while on the other hand, as I believe I have adequately explained above, such authority is not only not required by any constitutional implication, but rather it is contrary to constitutional implication, inasmuch as we are concerned with a negative arrangement. It also impairs the principle of separation of powers. Moreover, even according to the alternative view – which holds that there is a positive implication – under the circumstances, it does not have the power to overcome the legality principle, nor does it fall within the exception to the principle. Moreover, the arrangement implied by analogy deviates from the original constitutional arrangement (which is restricted to situations of necessity, and limited to a period of only three months).

 

C.        The Subservience of Institutional Basic Laws to Basic Rights

38.       Basic Law: The Government (like the other Basic Laws) is a chapter in Israel’s constitution, pursuant to the approach delineated by the “Harrari Decision”.[4] As such, it is integrated with the other institutional Basic Laws (Basic Law: The Knesset and Basic Law: The Judiciary), from which we derive the principle of the separation of powers, as well as with the value-based Basic Laws (Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of Occupation), which ensure the individual’s basic rights (from which the various subsidiary rights are derived).

39.       Under sec. 11 of Basic Law: Human Dignity and Liberty, and sec. 5 of Basic Law: Freedom of Occupation, all governmental authorities are required to respect the rights granted by these Basic Laws. Thus, the prime minister and the government must respect, inter alia, freedom of speech and freedom of the press, which were recognized as constitutionally protected subsidiary rights that are of sufficient importance to void a law repugnant to them, insofar as the violation does not meet the requirements of the Limitation Clause (see: HCJ 5239/11 Avneri v. Knesset (April 15, 2015) [http://versa.cardozo.yu.edu/opinions/avneri-v-knesset]).

            To continue the description and analysis, we would note that in the current Government, the Prime Minister also assumed the position of Minister of Communications, which is the only ministry for which he did not appoint a deputy minister.

This comprises two flaws:

(a)        As the head of the Executive Branch, the Prime Minister’s serving as Minster of Communications would appear to violate the separation of powers, inasmuch as the modern world views the communications media as a kind of fourth branch. This conduct presents an improper return to the days when the Israeli Prime Minister’s Office was in charge of the electronic media, and the matter was viewed as impairing democracy. It also ignores the fact that laws were passed to ensure the independence of the Public Broadcasting Authority, as well as of the Second Authority, which supervises private radio and television broadcasting.

(b)        The matter violates freedom of the press as a basic right without meeting the requirements of the Limitation Clause. In this regard, I would recall that from early on the press and journalists are not subject to, and do not require any material licensing for their occupation (see and compare: HCJ 5627/02 Saif v. Government Press Office, IsrSC 58 (5) 70, 76 (2004) [http://versa.cardozo.yu.edu/opinions/saif-v-government-press-office]); HCJ 10324/07 Shurat HaDin v. Government Press Office (July, 1, 2008); the Slavin case; the E-CIG case; also see: Yisgav Nakdimon, Journalist's Privilege, 165-174 (5773-2013); Shiran Yaroslavsky-Karni & Tehilla Shwartz-Altshuler, Regulating the Confidentiality of Journalistic Sources in Israel, 77 (Policy Papers 104 – Israel Democracy Institute, 2015) (Hebrew)).

40.       The above example is just one of many situations that could result from double roles, and I will not, therefore, provide further examples. Nevertheless, inasmuch as we now live in a “global village”, I deem it proper to refer to additional comparative law material, and the lessons learned therefrom. I shall do so in the following subchapter.

 

Additional Parallels from Comparative Law

41.       An examination of other democratic states in regard to a prime minister serving as a minister in charge of a ministry reveals that this is unacceptable in countries (like Australia and Denmark) in which there is no express authority (in the constitution) (as opposed to New Zealand and Poland, for example, where the constitution includes an express provision as we had in sec. 33(d) of the former Basic Law: The Government), for reasons similar to those that I presented above for prohibiting such a dual role. I would, however, note that in Nigeria, the head of the Executive Branch, Mr. Muhammadu Buhari (who is titled “President”) recently appointed himself (Sept. 2015) Minister of Energy (due to the turmoil in the world energy market), without express constitutional authority, but the matter led to a constitutional crisis that has not yet been resolved.

42.       The Respondents attempted to offer two replies to these arguments:

(a)        The Prime Minister’s appointment as a minister in charge of the ministries he assumed was ratified by the Knesset in voting confidence in the Government when it was presented by the candidate for prime minister.

(b)        The practice of the prime minister serving as a minister in charge of a ministry is a constitutional custom that should be recognized as valid.

            With all due respect, these arguments are unfounded, as I shall explain.

 

A Vote of Confidence by the Knesset cannot validate an Absence of Authority

43.       The accepted view in constitutional and administrative law is that a Knesset decision is not a law, and therefore, it cannot deprive this Court of its authority to review the constitutionality of the reviewed conduct in a case of deviation from authority (see: HCJ 157/63 Buchsbaum v. Minister of Finance, IsrSC 18 (1) 115, 131 (1964); and see: Baruch Bracha, Administrative Law, vol. 1, 244 (5747) (Hebrew)).

            We should note that it was held in the past that an absence of authority could be remedied by means of a law (see; HCJ 243/52 Bialer v. Minister of Finance, IsrSC 7 424 (1953)), however that holding was the subject of severe scholarly criticism (see: Hans Klinghoffer, On Emergency Regulations in Israel, in Haim Cohn (ed.), Pinchas Rosen Jubilee Volume, 86 (1962) (Hebrew); Benjamin Akzin, The Bialer Decision and the Israeli Legal System, 10 HaPraklit 113 (5714); on the entire issue, also see: Amnon Rubinstein & Barak Medina, Constitutional Law of the State of Israel, vol. 2, Government Authorities and Citizenship, 947 (2005); and recently: HCJ 4374/15 Movement for Quality Government in Israel v. Prime Minister, paras. 123 and 128 of the opinion of my colleague Deputy President E. Rubinstein (March 27, 2016)).

            It should be further noted that, in any case, today, even ratification by means of legislation is not of decisive effect, inasmuch as a law can now be voided for repugnance to the Limitation Clause. However, there is some significance to a Knesset decision, as in consideration of the decision, the result will be one of relative voidness, which will prevent the annulling of actions taken prior to the declaration of voidness by the Court.

            44.       I will now proceed to examine whether the Respondents’ “last line of defense”, regarding the constitutional practice followed in the past, justifies their approach.

 

Chapter V: Rejecting the Argument that Constitutional Custom can authorize the Double Role

45.       The Respondents argue that prior to the various iterations of Basic Law: The Government, during the period it was in force, and after the entry into force of the current Basic Law: The Government, it was the constitutional practice that, from time to time, the prime minister also served as a minister in charge of various government ministries. That, in their opinion, is sufficient to sanction the said conduct.

46.       With all due respect, the Respondents do not accurately portray the legal situation in this regard. Where there is a written constitution, a constitutional custom does not have the power to add to the provisions of the constitution and create ab nihilo. A constitutional custom can, at most, lead to the ignoring of a constitutional provision that has become a dead letter due to lengthy disuse: see: Richard Albert, Constitutional Amendment by Constitutional Desuetude, 62 Am. J. of Comp. Law 641 (2104), where the author writes in this regard:

Statutory desuetude occurs when some combination of the sustained non-application of a law, contrary practice over a significant duration of time, official disregard and the tacit consent of public and political actors leads to the implicit repeal of that law. By analogy, constitutional amendment by constitutional desuetude occurs when an entrenched constitutional provision loses its binding force upon political actors as a result of its conscious sustained nonuse and public repudiation by preceding and present political actors [ibid., p. 644].

            To this end, the author cites with approval the approach of Prof. David Law, who referred to such constitutional provisions that have come to be ignored due by custom as “Zombie provisions” which “endure in a formal sense but are for all intents and purposes, dead” (see: David S. Law, The Myth of the Imposed Constitution, in Denis J. Galligan & Mila Versteegs (eds.), Social and Political Foundations of Constitution, 239, 248, 250 (2013); and see: Prof. Shimon Shetreet, Custom in Public Law, in Itzhak Zamir (ed.), Klinghofer Volume on Public Law, 375, 399 (1993) (Hebrew)).

47.       The decisive proof that the above is correct can be found in the Partial Judgment in regard to the institution of “Deputy Minister with the status of a Minister”, which we invalidated even though it was a constitutional custom.

            This applies here a fortiori, in view of both the repeal of sec. 33(d) of the former Basic Law: The Government, and the multiplicity of ministerial positions that the Prime Minister currently holds, which testify that we are on a slippery slope on which the increased quantity becomes qualitative and nullifying (and compare: HCJ 910/86 Ressler v. Minister of Defence, IsrSC 42 (2) 441 (1988) [English: http://elyon1.court.gov.il/files_eng/86/100/009/Z01/86009100.z01.pdf]); HCJ 5016/96 Horev v. Minister of Transportation, IsrSC 51 (4) 1 (1997) [http://versa.cardozo.yu.edu/opinions/horev-v-minister-transportation]); HCJ 3267/97 Amnon Rubintein v. Minister of Defence, IsrSC 52 (5) 481 (2001) [http://elyon1.court.gov.il/files_eng/97/670/032/A11/97032670.a11.pdf]; HCJ 6427/02 Movement for Quality Government in Israel v. Knesset, IsrSC 61 (1) 619 (2006); HCJ 6298/07 Ressler v. Knesset (Feb. 21, 2012) [http://versa.cardozo.yu.edu/opinions/ressler-v-knesset]); HCJ 6051/08 Rosh Pina Local Council v. Minister of Religious Services (May 8, 2012)).

            Moreover, in the past, the claimed constitutional custom was invoked (usually by prior declaration) for a limited period, whereas in the case before us, there was no undertaking by the Respondents to terminate the situation, as was the case, for example, in HCJ 7375/06 and HCJ 9617/06, above, and in the example cited by my colleague the President in para. 10 of her opinion.

            We have thus arrived at the summation and conclusion stage, which will briefly be presented in the following chapter.

 

Chapter VI: Summary and Conclusions

48.       What follows from all the above is:

(a)        Interpreting the constitutional text from within shows that the current Basic Law: The Government provided no basis for the possibility of the prime minister serving as a minister in charge of a ministry (and needless to say, appointing deputy ministers for himself, as such), while simultaneously serving as prime minister.

(b)        The theory of implied constitutional interpretation, and the indicators that serve to uncover the said implication, lead to the conclusion that we are not concerned with a negative arrangement in regard to serving in double roles, nor with a positive implication that would permit it. This can be derived from the constitutional history of the amendments to Basic Law: The Government, and was also echoed in the arguments of the Petitioners who first raised this matter before the Court, as well as in prior case law. In addition, the constitutional values grounding these matters, and the lessons learned from comparative law, all lead to the same understanding. Moreover, even if we were concerned with a positive implication, the present situation deviates from the “model arrangement” established under sec. 24 of the current Basic Law: The Government, which is limited to a period of only three months.

(c)        A constitutional custom does not have the claimed power to maintain the conduct challenged in the Petition.

(d)       The above conclusions are based, inter alia, on:

            (1)        The appropriate status of the prime minister in accordance with the current Basic Law: The Government, under which he is meant to act as a “Democratic Prime Minister”, and as a “conductor” of an “orchestra of ministers” (and not as one of the musicians);

            (2)        The burden borne by the prime minister by virtue of his statutory duties, and the need to ensure his “neutrality” in regard to the ministers and the ministries so as not to find himself in an improper institutional conflict of interests.

(e)        The above conclusions are supported by the principle of the separation of powers and by the legality principle, and are required by the necessary subservience to such basic constitutional values as freedom of the press.

49.       In the United States, the above truths were already clear in 1789, when President George Washington thought fit to observe:

The impossibility that one man should be able to perform all the great business of the State, I take to have been the reason for instituting the great Departments, and appointing officers therein, to assist the supreme Magistrate in discharging the duties of his trust [30 Writings of George Washington, 333-334 (May 25, 1789) (John C. Fitzpatrick ed., 1939)].

            Our own sources predate that in saying: “If you grasp a lot, you cannot hold it; if you grasp a little, you can hold it”.[5] Our leaders would do well to act accordingly.

 

Chapter VII: Responses and Comments to my Colleagues’ Opinions

50.       I have just received the opinions of my colleagues Deputy President E. Rubinstein, Justice S. Joubran, and Justice N. Hendel, as well as the additional comments that my colleague the President wrote in response to my approach and the positions of my colleagues. These important matters require comment, and I will do so briefly.

51.       My colleagues share the President’s view that Basic Law: The Government, in its current form, does not deny the Prime Minister authority to serve simultaneously as a minister in charge of a ministry. However, my colleagues Deputy President E. Rubinstein and Justice N. Hendel, and to a certain degree, my colleague Justice S. Joubran, as well, are of the opinion that the bounty of portfolios currently held by the Prime Minister could possibly lead to a situation of unreasonableness that could result in an absence of authority.

52.       After carefully reading all the above opinions, I have not changed my view that we are already confronting a situation of lack of authority, for the many reasons that I set out above. But in view of the position of my colleagues, I am willing to concur in the approach of Deputy President E. Rubinstein, which my colleague Justice N. Hendel also supports, that the Petition be denied subject to issuing a “warning of voidance” to the Respondents (as we did in the Medical Association case).

            My colleague Deputy President E. Rubinstein takes the view that the prime minister’s serving in the additional role of a minister (Minister of Defense, or Minister of Foreign Affairs, or any other ministry that requires his special attention) is possible in terms of authority and discretion, inasmuch as it is not unambiguously prohibited by the current Basic Law: The Government, and has precedent. My colleagues Justices N. Hendel and S. Joubran ask that we not take a decisive stand on the issue of the number of ministries that a prime minister may hold, inasmuch as the Petition concerns the prime minister’s authority to serve as a minister in charge of a ministry, in addition to his role as prime minister, and not the reasonableness of his appointment to a number of government ministries. However, they, too, are of the opinion that the scope of the use of that authority may justify this Court’s intervention in the future. Therefore, my colleague Justice N. Hendel thought as I that it would be proper to issue an order nisi in the Petition, and he is even willing to issue a “warning of voidance”, as proposed by my colleague the Deputy President.

53.       In light of the above – and due to the need to express the overall consensus of the different opinions – I am willing, in the alternative, to join in the approach of my colleague Deputy President E. Rubinstein that we issue a “warning of voidance” to the Respondents. A similar consensus approach was adopted in CFH 3993/07 Jerusalem Assessment Officer v. Ikafood Ltd. (July 14, 2011), in which my colleagues (then) Justices M. Naor and E. Rubinstein and Justice S. Joubran joined in the operative result proposed by my colleague Justice E. Hayut, without retracting their principled opinions in regard to the matter before the Court in that case.

            I would further note that some sub-constitutional support can be found for the approach of my colleague the Deputy President in the provision of sec. 8 of the Service in the Military Reserves Law, 5768-2008 (enacted before the decision in the Medical Association case, and prior to the recent amendments to Basic Law: The Government). The said provision assumes the possibility that the prime minister will also serve as Minister of Defense, and establishes as follows:

8. (a)    Notwithstanding the provisions of sections 6 and 7, in emergency circumstances and being convinced that State security requires it, the Minister [the Defense Minister – H.M.], with the approval of the Government, may –

(1)        Order the call-up of any reserve soldier for reserve duty, as established in the order, at a time and place indicated in the order, to report and serve in reserve duty for as long as the order remains in force;

(2)        Authorize, by order, a calling-up officer or appointee, to call up a reserve soldier to report and serve as aforesaid in paragraph (1).

(b)       (1)        If the Minister is convinced that, due to the urgency of the matter, a reserve soldier must be called up for service under subsection (a) before it is possible to obtain Government approval, he may, with the consent of the Prime Minister, issue a call-up in emergency circumstances without the said approval. If the Prime Minister is serving as Minister of Defense, he shall consult with the Deputy Prime Minister, if one has been appointed;

            (2)        If the Minister acted under the provisions of paragraph (1), he will immediately notify the Government, and it may approve the call up with or without changes, or not approve it. If the Government approve the call up for service, it will be deemed to have been approved in advance by the Government in accordance with the provisions of subsection (a). Such a service call-up shall terminate seven days after its issuance, unless approved by the Government before then.

(c)        As soon as possible, and no later than 48 hours from its issuance, an order in accordance with subsections (a) or (b) will presented by the Minister for the approval of the Committee, which may approve it with or without changes, not approve it, or bring it before the Knesset. Such an order will terminate after 14 days of the day of its issuance, unless approved by the Committee or by the Knesset before that [emphasis added – H.M.].

            I also find it appropriate to note – in regard to the orchestral conductor model that I mentioned earlier – that there are a few conductors who, in addition to conducting, also play one (and only one) instrument along with the orchestra, but these are a very rare exception that actually testifies to the rule.

54.       My colleague Justice N. Hendel is of the opinion that in the interim – while the “warning of voidance” is in force – the constituent authority can amend Basic Law: The Government, and state its opinion on the matter. I do not reject that approach, and I even expressed a similar view in the Medical Association case. I also agree that the call to the constituent authority to frame the basic structure of the Israeli regime in Basic Laws is not to be understood as an order. However, his further holding that, in any case, we do not have the authority to order the legislature to legislate should be restricted to certain exceptions (see: Aharon Barak, The Constitutional Right to Protection and the Duty to Respect It (to be published in 17 Mishpat uMimshal) (Hebrew); Ronen Poliak, The Court and the Duty to Legislate (paper presented at the conference in honor of the retirement of Supreme Court President (Emeritus) Asher Grunis, not yet published (Hebrew)).

15.       My colleague the President is of the opinion that we should not issue a “warning of voidance”, inasmuch as such relief was not requested, and the Respondents were not granted an appropriate opportunity to respond to it. To that my colleague the Deputy President responds:

“Woe is me because of my Creator [yotz’ri] and woe is me because of my evil impulse [yitzri]”,[6] but remaining silent would, in my view, render our decision as a sort of “certificate of approval” for the existing situation, which is not our intention. “Let me speak, then, and get relief” (Job 32:20) legally speaking, and perhaps also do some good. In any case, if the matter arise again, we will happily hear the arguments of the parties.

            In this regard, I add my voice to that of my colleague the Deputy President. There are two reasons for this:

(a)        If, for example, the parties do not raise a relevant legal provision, would our judgment ignore its existence and its consequences for the petition (while denying it), even if only in regard to the future? In my opinion, the rule should be similar in regard to unreasonableness or disproportionality that appears to be revealed before us.

(b)        In HCJ 7311/02 Association for Support and Defence of Bedouin Rights in Israel v. Beer Sheva Municipality (June 22, 2011) (hereinafter: the Association for Support case), the Court majority (Justices A. Procaccia and S. Joubran, Justice M. Naor dissenting) issued an order absolute that appeared to deviate from the order nisi granted in the petition.

That result was grounded, inter alia, upon the reason that the order absolute could be viewed as a “small part” comprised by the general “whole” of the original order nisi.

Without expressing a conclusive opinion as to the disagreement that arose in that regard in the Association for Support case, the matter before us follows that one a minore ad maius, as even here we are concerned with a “small part”, and moreover, here we are denying the Petition, subject to a “warning of voidance” regarding which – if the matter remains unchanged – the Petitioners can file a new petition in the future, and the rights of the Respondents are reserved for the future proceeding. That is also what we did in the Medical Association case, and the concatenation of events that led to the – unanimous – Partial Judgment shows this to be an appropriate approach.

 

Conclusion

56.       In closing, I believe it fitting to recall the lesson taught us by Rashi in his commentary to Genesis 18:2 (parashat VaYera), in explaining the reasons for three visiting angels appearing before our Patriarch Abraham, by citing Genesis Rabba 50:2:

                                    One angel cannot carry out two missions.

 

 

Deputy President E. Rubinstein:

1.         Is the Prime Minister permitted to hold one or more ministerial portfolios in addition to serving as Prime Minister? This is the burning question at the heart of the disagreement between my colleague the President and my colleague Justice Melcer. The Petitioner basis its argument that it is prohibited on the change in Basic Law: The Government that omitted the “historical” provision that permitted a prime minister to serve as a minister (the old sec. 33(d)), and the provision regarding a “temporary” acting minister (the current sec. 24). The Respondents are of the opinion that the world continues to spin on its axis, as it always has, the omission is of no consequence, and the current practice is not contrary to law. I will put the cart before the horse and say that, in my opinion, the current situation tends toward the position of my colleague the President, and thus would appear to rest on unsound footing if it were considered in terms of reasonableness, inasmuch at that might lead to an absence of authority, as my colleague [Justice Melcer] argues. I will not now set matters in stone, as we have not heard arguments on this aspect, but I would I would apply – and sooner rather than later – the “warning of voidance” issued in HCJ 3002/09 Israel Medical Association v. Prime Minister (2009) (hereinafter: the Medical Association case), in regard to the institution of a “Minister with the status of a Minister” (para. 41 of my opinion), as I shall briefly explain.

2.         My colleague the President presented the history of the subject, and arrived at the conclusion that the current silence of the Basic Law, as opposed to the previous situation “does not constitute a negative constitutional arrangement, but rather a positive constitutional implication” (para. 6), from a broad view of the pre-constitutional history that preceded Basic Law: The Government, constitutional history, and longstanding practice. In her opinion, the arrangement regarding a temporary acting minister does not preclude the “established” authority. In accordance with her approach, the objective purpose of the matter, which may be learned, inter alia, from the history, requires a fundamental view that a prime Minister is also authorized to serve as a minister in charge of a ministry.

3.         As opposed to this, my colleague Justice Melcer is of the opinion that the seeds of the present stage were planted in his opinion in the Medical Association case, reached fruition in our Partial Judgment, and in place of the “Deputy Minister with the status of a Minister” that has passed form the world, a redeemer has come to the Ministry of Health in all its glory. In the Medical Association case, my colleague expressed the opinion that the Prime Minister could not serve as a minister in charge of a ministry, except for a temporary period (under the said sec. 24), and in any case, could not appoint a deputy minister. My opinion in regard to that comment was, as my colleague noted, that the matter should be examined in the future, and “as the Chinese proverb goes, a journey of a thousand miles begins with a single step” (para. 43 of my opinion). In a wide-ranging survey of Israeli and comparative law, my colleague expressed the view that the very legal assumption (to which I would add: even if it is only theoretical in a rational reality) that the prime minister can fulfill the roles of all the ministers (as stated in response to a question posed to the Respondents’ attorneys in the hearing before us in this case), empties all content from the provisions of the Basic Law in regard to the nature of the Government as an Executive Branch (sec. 1), and in regard to the status of the prime minister in relation to the ministers (sec. 5(a)), as the prime minister, by his title and function, is not a “minister” like the others ministers, not “first among equals”, but holds a special status that is unlike that of a minister who is “in charge of a Ministry” (sec. 5(c)). My colleagues brings various proofs, which for the sake of brevity, I will refrain from repeating. As opposed to our colleague the President, he is of the opinion that our matter presents an implied negative arrangement, rather than a positive implication, and in his view, the omission of sec. 33(d) from Basic Law: The Government in its current form expresses a negative arrangement, in accordance with the provision in regard to full constructive non-confidence in sec. 28(b) of the current Basic Law. In his view, according to the fundamental values of our system, the heavy burden borne by the prime minister, and the legality principle, the “prime minister is the conductor of an orchestra”, and not one of the musicians. He is of the opinion that the customary practice that had been followed until now was limited in time, and in any case it should be declared void, as was the case of a “Deputy Minister with the status of a Minister”.

4.         My colleague the President replies that the pre-constitutional history that reflects the purpose does not support my colleague Justice Melcer’s position in regard to authority, and that we are, therefore, concerned with discretion, which is not part of the Petition and does not require our decision (such as the subject of the burden borne by the Prime Minister due to the large number of ministries for which he is responsible).

5.         Which path shall the interpreter choose? Two decades ago I wrote an article, which was also cited by my colleague Justice Melcer, called “Basic Law: The Government in its Original Form – Theory and Practice, 3(2) MISHPAT UMIMSHAL 571 (5756) (Hebrew), which was later reprinted in a slightly revised form in my book Paths of Governance and Law, 79 (5763-2003) (Hebrew). The article was written shortly after I completed seven-and-a-half years of service as Government Secretary in four governments, and included some of the lessons learned in the course of those years. In the meantime, for seven years I sat at the Government table as Attorney General (February 1997 until the end of 2003), and further lessons were learned, which did not change the main conclusions. In that article, I wrote at length about the “game of portfolios”, under the title “Responsibility: Distortion and Impropriety”, and gave examples of anomalous situations in the government that I will not revisit here (see my book at pp. 97-98). Among other things, here is what I wrote (p. 98 of the book):

Another type of impropriety, less in the formal sphere (but eventually, there as well) and more in substance, was reflected in the Prime Minister’s holding portfolios like the Ministries of Religion and Interior over an extended period, which prevented true ministerial administration of the ministries, and emptied the concept of responsibility of all material content…The above focuses attention on questions of the culture of governance and respect for the rule of law – a subject that, first and foremost, requires internalizing the values and principles in governmental practice, and is primarily an educational process to which it is doubtful that attention is being paid.

            What was thus some decades ago, has grown before our very eyes. Today, the Prime Minister also holds the portfolios of the Ministries Foreign Affairs, Economy, Communications, and Regional Development. Even according to the approach of my colleague the President, which would indeed appear to reflect the objective and subjective intents, to which I shall return, I would say that it is clear that we are concerned with an unhealthy process of problematic exercise of authority, even if the intentions are good and the exigencies substantial. The apparent theoretical possibility of multiple portfolios itself raises concerns. My longstanding opinion, as quoted above, is that in such a situation there is “impropriety, less in the formal sphere (but eventually, there as well) and more in substance…” (emphasis added – E.R.). The question is, even assuming authority, can “distortion and impropriety” (as the chapter heading of my article) in the exercise of authority eventually lead to an absence of authority? This is not a legal impossibility. As Justice Mishael Cheshin stated in HCJ 1730/96 Sabih v. Commander of IDF Forces, IsrSC 50 (1) 353 (1996), there can be a situation of “an unlawful decision…that is not supported by proper discretion, a decision that is tantamount to one made in deviation from authority” (emphasis added; also cited by Justice Mazuz in HCJ 6745/15 Khalid Abu Hashia v. Military Commander of the West Bank (2015) para. 16).

6.         I find myself confronting a dilemma. The reality, which has expanded before our very eyes since the filing of the Petition, is one in which the Prime Minister holds no fewer than four additional ministerial portfolios for an extended period, as opposed to the brief transition period permitted by the Basic Law, and shouts concern. It may be that the situation partly derives from real political exigencies of one type or another, but clearly, even if this is proper from a formal perspective, it is materially improper. Are we not approaching the “red line” where unreasonableness translates into an absence of authority? Can one person, no matter how talented – and there is no doubt as to the Prime Minister’s talents – who is “the busiest of the busy, the quintessence of busy” (see para. 23 of our Partial Judgment in this Petition) properly attend to such a bounty of roles, each of which, or at least the great majority of which, require the maximal attention of a “full-time position” and more – the Ministry of Foreign Affairs, the Ministry of the Economy, the Ministry of Communication, and the Ministry of Regional Cooperation? Is the public receiving the service it deserves from a minister? It would appear to me that even the Prime Minister – who is more knowledgeable than any other – would not say so, no matter how good and fit the civil servants who bear the day-to-day burden. It is, therefore, highly doubtful that the answer to the question could be in the affirmative. Indeed, there have been various precedents, particularly in regard to a single, important ministerial role, in our nation’s history – particularly in regard to the Ministry of Defence during the tenure of David Ben Gurion as the first Prime Minister and Minister of Defense (and Levy Eshkol, as well (until 1967), Yitzhak Rabin, Ehud Barak, and for brief periods, Menachem Begin and Yitzhak Shamir), and the second Prime Minister, Moshe Sharett, also served as Minister of Foreign Affairs. It may be that we should not preclude this possibility, even though times have changed, as have the burdens associated with each of these ministries – which is certainly the case in regard to the Ministry of Defence and the Ministry of Foreign Affairs, speaking from my own personal experience in those Ministries. In terms of what is desirable, my colleague Justice Melcer is correct in bringing examples from other important governments throughout the free world in which the prime minister is the “conductor of an orchestra” but does not also play one of the instruments. We are thus confronted with the question of how to address a situation in which the Prime Minister amasses portfolios, whatever the considerations may be, not merely for a brief transition period, but rather “for the duration”.

7.         In this regard, I cannot but recall the advice of Jethro to his son-in-law Moses, upon seeing him sit in judgment “from morning until evening” (Exodus 18:13), saying “…What is this thing that you are doing to the people? Why do you act alone, while all the people stand about you from morning until evening?” (18:14). He then warns Moses: “…The thing you are doing is not right; you will surely wear yourself out, and these people as well. For the task is too heavy for you; you cannot do it alone” (18:17-18). He, therefore, offers the advice: “You shall also seek out from among the people capable men who fear God, trustworthy men who spurn ill-gotten gain. Set these over them as chiefs of thousands, hundreds, fifties and tens” (18:21).  Some see Jethro as the first organizational consultant, at least in Jewish law. How appropriate these words are for the situation before us. Jethro’s warning to Moses is not only about his own strength, but also about the influence upon the people, as Rashi notes in regard to the words “too heavy for you”: “Its weight is greater than your strength”. All of administrative theory in one chapter.

8.         Here, then, is the dilemma: The Petitioners limited their petition to the question of authority, rather than to that of reasonableness. Therefore, as noted, the issue of reasonableness was not argued before us at all. It is, therefore, problematic to justify the present use and implementation of the theory of unreasonableness evolving into a lack of authority in regard to so sensitive an issue.

9.         In the framework of this petition, it would appear that the old legal situation – supported by my colleague the President – must prevail at present. As opposed to my colleague Justice Melcer, I do not believe that the omission of the authorizing provision reflects the legislative intent of the constituent legislator. From my acquaintance with the system, I am of the opinion that we are concerned with an incidental omission of what seemed self-explanatory, as it had been the practice since the 5^th of Iyyar 5708[7] that the prime minister fulfilled an additional ministerial role. I would, therefore, not currently view it as a negative arrangement, even though one may certainly be drawn in that direction when confronted with so long a train of ministries coupled to the Prime Minister’s engine, and perhaps I would not say so decisively if we were concerned with only one important ministry, and no more. I will not presume to enter into the lofty debate on “implication” of one sort or another. In simple terms, I think it very difficult to assume that anyone in the Knesset thought that the door to an additional ministerial portfolio was closed before the prime minister, and history also presents an “objective purpose”, and thus the opinion of my colleague the President. As opposed to this, I doubt that any of the legislators gave any thought to the possibility of a “slippery slope” of an abundance of portfolios, even as matter of common sense. In total, I am of the opinion that we must follow the legal approach of my colleague the President. However, and without setting matters in stone, I must add a clear warning of voidance in regard to “unreasonableness that evolves into a lack of authority”. I believe it necessary that this Court, dedicated to the desire for good governance, give notice of this possibility with a view to the not-so-distant future. As for myself, I am of the opinion that our duty to the lawfulness of the regime requires that we state that if the existing situation remains materially unchanged for a period of – let us say – some eight more months, and is again brought before us for judicial review, the arguments will, of course, be heard with an open heart, but the issue will be ripe for the full review that was not carried out in this petition.

10.       As brevity is appropriate following the fine words of my colleagues, I will not go on at length, but will reiterate that while authority appears to exist at present, it verges upon descending into unreasonableness that evolves into a lack of authority, and therefore I believe a “warning of voidance” is appropriate, and better that the situation be corrected earlier, so that it be reasonable, in one way or another, for proper governance. For the present, I concur with my colleague the President.

11.       In view of the opinion of my colleague Justice Hendel, I would add: there is justice to his comment (paras. 4 and 5) that a subject that is left largely ambiguous in the current Basic Law: The Government should be clarified legislatively. This also derives from the growing number of tasks placed upon each ministry (see para. 6 of my opinion). This also has consequences for governance and democracy, and in light of his experience and acquaintance with the many responsibilities at his doorstep, the Prime Minister is certainly the first to know this. I say this in the simple terms of the limits of human ability when confronted with mountains of decisions, even beyond the potential questions of conflicts of interests, in order to avoid reaching the “straw that breaks the camel’s back”. As Deputy President M. Cheshin wrote in CA 1761/02 Antiquities Authority v. Mifalei Tahanot Ltd., (2006) para 57, in regard to the implementation of the doctrine of relative voidness, “We should recall and observe: common sense and human wisdom are our best and most loyal friends. We will always have them in our quiver, and in interpreting the law and rendering judgment, we will always hold them in our grasp in order to see whether or not they are nodding in assent”.

12.       Finally, my colleague Justice Hendel noted (para. 5) the importance of legislation in Jewish law (or perhaps we should say – the importance of the clarity of legislation), and cited Rabbi A.I. HaKohen Kook in regard to the power of the nation in the absence of a monarchy in Israel – or if you like, the power of democracy. I cited this in my article Jewish Monarchy versus Dina DeMalkhuta: On Judge Dr. Gershon German’s Book “King of Israel: Permanent Sovereignty in light of Halakha and the Status of Knesset Legislation in Halakaha”, 22 Mekhkarei Mishpat 489, 494-493 (5766-2006) (Hebrew). Rabbi Kook’s ideas were further developed by Rabbi Shaul Yisraeli, one of the leading Zionist rabbinic scholars, editor of the HaTorah veHaMedina anthologies that addressed questions of statehood upon the founding of the State of Israel (see their reprints in BeTzomet HaTorah veHaMedina (Rabbi Y. Shaviv, ed.) (5751), and additional references in my article, and see the lecture of Prof. A. Edrei upon receiving the Zeltner Prize (March 22, 2016)). Democracy is a wonderful idea. Its implementation, and the prevention of its paralysis or disintegration will be achieved, inter alia, by a system of laws that enables its translation to a working reality, despite exigencies and difficulties, By this judgment, we hope to contribute to that effort.

13.       Lastly, I cannot avoid addressing my colleague the President’s comment in regard to a “warning of voidance”. “Woe is me because of my Creator [yotz’ri] and woe is me because of my evil impulse [yitzri]”, but remaining silent would, in my view, render our decision as a sort of “certificate of approval” for the existing situation, which is not our intention. “Let me speak, then, and get relief” (Job 32:20) legally speaking, and perhaps also do some good. In any case, if the matter arise again, we will happily hear the arguments of the parties.

 

Justice S. Joubran:

1.         I have read and reread the opposing opinions of my colleagues President M. Naor and Justice H. Melcer, and although the reasoning of my colleague Justice M. Melcer is enlightening, I concur in the opinion of my colleague the President.

2.         As my colleague the President explains, the practice of the prime minister serving simultaneously as a minister is an accepted practice in the Israeli governmental system (see paras. 9-11 of her opinion. And see HCJ 3002/09 Israel Medical Association v. Prime Minister, para. 2 of the opinion of President D. Beinisch (June 9, 2009)). I agree with her approach according to which the absence of an express provision granting this authority to the prime minister does not constitute a negative arrangement, but rather a quasi-positive constitutional arrangement. Without following the rich and enriching path of my colleague Justice H. Melcer, it would seem to me that viewing the omission of the authority in the amended Basic Law: The Government (of 2001) as a negative arrangement would require the concrete, knowing consideration of the legislature of the consequences of the change brought about by the amendment’s silence (see and compare: HCJ 43/16 Ometz – Citizens for Proper Administration and Social Justice in Israel v. Government of Israel, para. 70 of my opinion (March 1, 2016)). This, in particular, when we are concerned with a significant constitutional change that alters a practice deeply rooted in the Israeli system.

3.         However, in my opinion, the scope of the exercise of this authority is what might justify the intervention of this Court, particularly when we are concerned with an authority that is implied rather than express. While, in the past, the prime minister indeed served as a minister – as the Respondent detailed in Appendix R/7 of its response – this generally concerned serving in one, or at most two ministries – generally the Foreign Ministry and /or the Ministry of Defence. In the few instances in which the prime minister served as the minister responsible for three or more ministries, it was only for a limited time, rather than permanently. Thus for example, from the example cited by my colleague the President in para. 11 of her opinion, we can see that then Prime Minister Menachem Begin served as a minister responsible for the Ministries of Welfare, Justice, Transportation and Communications for a “brief transition period”. In practice, that period indeed continued only for a few months – four in total – from June 20, 1977 until Oct. 24, 1977.

4.         In my view, the present situation challenged in the petition, in which the Prime Minister is responsible for a number government ministries for an unlimited period – without express authority under the Basic Law – is problematic. At present, in addition to his broad authorities as first among equals, the Prime Minister also exercises the authorities of several ministries of no insignificant influence. Great, exceptional power is concentrated in his hands, such that in practice, his governance is “governance by the Prime Minister”. I would note that I am doubtful that such a situation is appropriate in a democratic regime. To that one might add doubts as to the effective performance of the government when one person amasses ministries, particularly when that person is, as my colleague the Deputy President noted, “the busiest of the busy” (see: Shimon Shetreet, The Government: The Executive Branch – Commentary to Basic Law: The Government 235 (to be published) (Hebrew)).

            These fears only increase in view of the fact that the authority is implied rather than express. This is so because, by nature, the borders of implied authority are unclear and are more susceptible to interpretation – a characteristic that, in my opinion, requires greater care in its exercise so it not result in a lack of authority. Similarly, my colleague the Deputy President was of the opinion that while there is authority, the situation threatens to degenerate into one that is unreasonable to the point of an absence of authority. However, as my colleague the President pointed out, we are concerned with a petition challenging the Prime Minister’s authority to serve as a minister in addition to his role as Prime Minister, and not with the reasonableness of his serving as a minister in charge of a number of government ministries. I am of the opinion that such authority – although only implied – indeed exists, and therefore, I see no need to broaden the scope of review at this time.

5.         In light of all the above, I concur in the opinion of my colleague President M. Naor.

 

Justice N. Hendel:

1.         On Aug. 23, 2015, a partial judgment was given in this petition, in the framework of which this panel held that the institution of a “Deputy Minister with the status of a Minister” lacked validity, and we ordered that Yaakov Litzman, who then served as Deputy Minister of Health with the status of a minister, cease to serve in that position within 60 days (hereinafter: the Partial Judgment). We are now concerned with another aspect of the petition, regarding the question of the Prime Minister’s authority to serve simultaneously as a minister in his own Cabinet.

            On May 14, 2015, the Knesset voted confidence in the 34^th Government, led by Benjamin Netanyahu, who had decided to retain four government ministries in his own hands: the Ministries of Foreign Affairs, Communications, Health, and the Regional Cooperation. Pursuant to the Partial Judgment, the Ministry of Health was entrusted to Yaakov Litzman. Various ensuing developments led to the transfer of the Economy portfolio to the Prime Minister, such that at the time of this writing, the Prime Minister continues to fill four permanent ministerial positions. The Petitioner argues that Basic Law: The Government does not permit the Prime Minister to serve as the minister of a government ministry in parallel to his role as Prime Minister, regardless of the size of the ministry, the scope of his activities, or the number of portfolios (hereinafter: parallel service). Therefore, the Petitioner asks that we invalidate Netanyahu’s status as a minister in each of the four ministerial positions that he holds.

            A disagreement has arisen among my colleagues on this issue. According to the view of my colleague President M. Naor, the silence of Basic Law: The Government should not be deemed a negative arrangement that denies the Prime Minister authority for parallel service. On the contrary, the objective purpose of the Basic Law – as well as the practice’s deep roots in Israeli political tradition – show that the legislative silence creates a “positive constitutional implication”, and extends the general provisions regarding the appointment of ministers to the Prime Minister, as well. This view was joined by my colleagues Deputy President E. Rubinstein and Justice S. Joubran, each in his own way. As opposed to them, my colleague Justice H. Melcer is of the opinion that there is no avoiding the conclusion that Basic Law: The Government does not authorize the Prime Minister to serve simultaneously as a minister in charge of a government ministry. In his view, an analysis of the various provisions of the Basic Law shows that the prime minister is not deemed a minister, and thus the general arrangements that apply to other ministers cannot be applied to him. In view of the constitutional history and the fundamental principles of the legal system, such as the separation of powers and the legality principle, the Basic Law’s silence in the matter should be viewed as a negative arrangement.

            After reviewing the material, I am of the opinion that we are concerned with a complex, multifaceted issue. Therefore, were my opinion accepted, we would hereby issue an order nisi instructing the Respondents to explain their position, if only in order to allow for its thorough, comprehensive examination. However, this suggestion was not accepted by my colleagues. On the merits, I have decided to concur in the result arrived at by my colleague the President that the petition, in its present aspect, be denied. However, in my view, we should not suffice with a binary analysis of the status of parallel service. In other words, as I shall further explain, the answer in regard to this practice should not take the form of a red light or a green light, inasmuch as the factual circumstances may lead to a different conclusion in appropriate circumstances. In order that my position be understood properly, some expansion is necessary. At this point, I will state in a nutshell that my answer to the question of the legality of parallel service is rather a yellow light.

2.         Before addressing the implications of the concrete factual foundation, I will preface in stating that my conclusion that the petition be denied requires that we contend with two significant legal hurdles. The first and primary one is the omission of the express authorization provision that previously appeared in sec. 33(d) of Basic Law: The Knesset (1992), which stated: “The Prime Minister may also function as a Minister appointed over an office”. The current Basic Law, which was established in 2001, repealing its predecessor, does not comprise a similar provision, which would seem to indicate an intention to deviate from the prior arrangement, and deny authority for parallel service. However, the State’s attorney, Adv. Sharon Rotshenker, supplied a convincing response to this argument, explaining in the hearing that the omission should be viewed against the background of the broader revisions of Basic Law: The Government over the years. As she explained, the original Basic Law: The Government of 1968 also did not comprise an express authorization, as there was no need. As opposed to that, the Basic Law established in 1992 adopted the direct-election system, by which the prime minister was directly elected by the public. Due to that change, which introduced a material distinction between the prime minister, who was elected by the public, and the other government ministers, there was a need for the express anchoring of the prime minister’s parallel authority to wear a ministerial hat. However, upon the repeal of direct elections and a return to the old parliamentary system in the current Basic Law, the prime minister and his ministers once again stand on an identical normative plane. Therefore, express authorization for parallel service is no longer required. As a result, the omission should not be viewed as intending a negative arrangement. On the contrary, it reflects the idea that “what was”, prior to the short-lived transfer to direct elections, is “what will be”.

            As noted by my colleague the President (para. 8 of her opinion), this conclusion is supported by the fact that there was no reference whatsoever to the subject of parallel service either in the Explanatory Notes of the current Basic Law, or in the course of the its establishment by the Knesset. Inasmuch as we are concerned with a political practice that is nearly as old as the State, the argument that the legislature sought to uproot it offhandedly, without any consideration of the objectives and consequences of such a step, is far from convincing, particularly when there is an acceptable alternative explanation for the omission.

            The second hurdle is that of constitutional implication theory, which, according to my colleague Justice H. Melcer, shows that Basic Law: The Government intended to create a negative arrangement in regard to the matter before us. However, over and above the general complexity of implementing this theory – even in the American legal system where it was born – the following point is salient to its dismissal. My colleague compared the relationship between the constitutional text and its inferred interpretation to the relationship between the Written Torah and the Oral Torah. This comparison is, indeed, useful in explaining the doctrine, but precisely for that reason, and against the background of the accepted practice of Israeli political tradition, it serves to detract from the weight of the doctrine in the matter before us. In other words, the lack of harmony and congruence between the Oral Torah – i.e., the apparent constitutional implication – and the existing custom raises the question whether that Oral Torah is actually an appropriate interpretation of the Written Torah that is Basic Law: The Government, or whether we are concerned with an error by the decisors in understanding the legislative language. Indeed, my colleague impressively described the inherent problematics of the prime minister serving as the minister of a particular ministry – whether due to an erosion of the principle of the separation of powers, or the possible violation of basic rights, or due to various aspects of “practical perception” in regard to the status of a regular minister, and the problem that arises when he is also the prime minister. However, in my opinion, a long road separates a finding that parallel service is undesirable and concluding that there is a constitutional arrangement that prohibits it. In this sense, the existing practice by which prime ministers served as ministers in their governments provides a significant indication that the flaws pointed out by my colleague do not cross the threshold of illegality, and do not translate into a constitutional restriction upon parallel service. And note that I am not arguing that custom “overrides” a constitutional provision. On the contrary, in the spirit of the analogy to the Oral Torah, I believe that it would be appropriate to apply the Talmudic principle that “when any law is unclear before the court and you do not know what is right, go and see what the public does, and act accordingly” (Jerusalem Talmud, Peah 7,5). In the absence of an express provision in the matter – as we see from the disagreement among my colleagues – custom, even if not obligatory, may shed light on the situation and show us the law. That being so, and without taking a stand de lege ferenda, I cannot concur with the opinion of my colleague that the Prime Minister lacks authority to serve as a minister, regardless of the circumstances.

3.         The Petitioner chose to put all its eggs in the basket of lack of authority, and refrained from raising arguments against the manner of the Prime Minister’s exercise of discretion. The Petitioner’s attorney made this unequivocally clear in the hearing on Nov. 11, 2015, responding to a direct question that “I am arguing only in regard to the issue of authority”. That being the case, we could end the discussion of the petition at this point, in view of the holding that the appropriate interpretation of the arrangements under Basic Law: The Government, as a whole, point to there being authority, in principle, for parallel service.

            However, in light of the fundamental aspects of the issue, and in view of the partial factual grounds presented to the Court, I believe it proper to devote a few words to the grounds of reasonableness and proportionality, so that the result I reached – denial of the petition – not create a mistaken impression in regard to my reasons, and the full legal picture as I understand it. As I stated, in the context of this petition I held that the Prime Minister has the authority, in principle, to serve simultaneously as a minister in his Government. However, as I shall explain, that does not comprehensively permit parallel service. The extent and scope of the parallel service influences its reasonableness, and an extreme deviation from the margin of reasonableness may color it in the future with the colors of a deviation from authority (on the fine line between reasonableness and illegality, particularly in view of the implied nature of the authority for parallel service, also see paras. 5 and 9 of the opinion of Deputy President E. Rubinstein, and para. 4 of the opinion of Justice S. Joubran).

            Clearly, we cannot countenance a situation in which a prime minister appoints himself as a minister in all the government ministries, and effectively sit alone at the government table. Such a step would render the institution of the government devoid of all content. Even if, formally speaking, each such ministerial appointment would be valid, the final result would be unacceptable. That would also certainly be the case if the prime minister were to take responsibility for ten ministries. As opposed to this, some would argue that parallel service in one government ministry, in accordance with the longstanding practice, is firmly within the margin of reasonableness. Between these two extremes there is a gray area for which we cannot establish a hard-and-fast numerical formula. In any case, it is clear that the quantitative aspect is significant for the reasonableness of parallel service.

            Along with the number of ministries that a prime minister wishes to run, there is also considerable significance – from the perspective of reasonableness – to their quality, for example, the scope of activity involved in their regard, their centrality to the work of the government, and the extent of their influence upon basic rights. This is so in two aspects. First, it can influence the force of the legal problems involved in parallel service, such as the fear of institutional conflicts of interest among the various roles of the prime minister, harm to the status of the government as an independently functioning body, or a possible erosion of basic rights. Second, an analysis of reasonableness must also attribute importance to more practical considerations. The prime minister bears heavy responsibility for the security and welfare of the citizenry of Israel, and he fulfills a long list of roles by law. There are grounds to fear that adopting an additional heavy burden, in the form of a number of government ministries with a broad scope of activity, will impair his ability to dedicate himself to the tasks he faces, and require that he allocate his resources in a manner that is neither optimal nor efficient. This fear grows as the ministerial burden increases – both quantitatively and qualitatively.

            Even the most capable person, with the best intentions, is subject to the limits of time that we all share, and which cannot be modified or expanded. In this regard, it is worth recalling the Biblical story already mentioned by some of my colleagues: When Jethro, Moses’ father-in-law, saw that Moses sat alone in judgment, he said to him “What is this thing that you are doing to the people? Why do you act alone, while all the people stand about you from morning until evening?” […] The thing you are doing is not right; you will surely wear yourself out, and these people as well. For the task is too heavy for you; you cannot do it alone” (Exodus 18:13, 17-18). Moses accepted this criticism, proceeded to appoint additional judges, and no longer bore the burden of cases alone. The Hebrew expression “wear yourself out” [“navol tibol”, literally “wither away”] is borrowed from the plant world, but is true in regard to a person, and even to a person serving as a leader (see and compare the commentary of Rabbi Samson Raphael Hirsch on Exodus 18:18). Thus we find that even if it is hard to establish the limits of ability, there can be no doubt that such limits exists, and it would be best to take that into account both for the good of the country and of the leader.

            In summary, the parameters of the dispute set by the Petitioner do not make it possible for us to examine the reasonableness of the Prime Minister’s serving as Minister of Foreign Affairs, the Economy, Communications, and Regional Cooperation, and therefore we cannot make a finding as to whether that might constitute a deviation from authority. In any case, this is not the time for such a decision.

            In view of the problems presented by parallel service – particularly against the background of a multiplicity of hats with vast authority, and the responsibility and burden assumed by the Prime Minister – it would seem that the time has come to issue a “warning of voidance” in regard to the unclear legal future of this practice (see Liav Orgad and Shai Lavie, Judicial Directives: Normative and Empirical Assessment, 34 Tel Aviv University Law Review 437, 447-449 (2011) (Hebrew) (hereinafter: Orgad & Lavie). In other words:

The Governmental regime must consider that this judgment, even if it did not result in judicial intervention due to the background described, is a warning sign for the future. What the average person cannot accept as logical and reasonable, and that has another solution, should be resolved in the proper way, that is fair to all and that realizes the spirit of the law [HCJ 3002/09 Israel Medical Association v. Prime Minister, para 41 of the opinion of Deputy President E. Rubinstein (June 9, 2009) (hereinafter: the Medical Association case)].

            This is how this Court acted in the Medical Association case, when it explained that the institution of a deputy minister acting as a minister “is an institution that is approaching the end of the road”, and that there is no alternative to appointing a “minister in all its ways and means” (ibid.). As may be recalled, the warning given in that matter became an order in the Partial Judgment in this petition. In this case, we cannot hold that the Government must act in a specific way, such as the absolute rejection of parallel service, inasmuch as – as I noted above – the margins of reasonableness and proportionality may justify less comprehensive arrangements. In addition, here we are giving the authorities an opportunity to consider a legislative amendment that would arrange the matter of parallel service by filling in what is lacking, and not merely by relating to the existing law. In these ways, the issue of parallel service differs from that of the status of a deputy minister, regarding which the warning of voidance comprised a clear directive in regard to the desired action – absolutely annulling the institution. Nevertheless, there is more in common than what divides: in both cases it became clear that the conditions for granting operative relief had not yet ripened, the questions in regard to the legality of the practice could lead to future judicial intervention, and therefore it is appropriate that we grant the governmental authorities an opportunity to develop a balanced arrangement.

            I therefore concur with the position of my colleague Deputy President E. Rubinstein that “if the existing situation remains materially unchanged for a period of – let us say – some eight more months, and is again brought before us for judicial review […] the issue will be ripe for the full review” (para. 9 of his opinion). While the arguments of my colleague Justice Melcer do not, in my opinion, lead to a conclusion that the Basic Law entirely prohibits authority for parallel service, they ground and reinforce a cause of unreasonableness to the extent that, in certain circumstances, the unreasonableness of parallel service may be tantamount to a deviation from authority. Therefore, it is appropriate that we follow the course set in the Medical Association case, and issue a warning of voidance.

4.         Another significant reason for my decision is to be found in the general conception of the proper status of legislation in the State of Israel. In his book The Dignity of Legislation, New Zealand scholar Jeremy Waldron – one of the leading thinkers in the areas of political philosophy and the philosophy of law – argues that, normatively and conceptually, the institution of legislation should be viewed as a “dignified mode of governance and a respectable source of law” (p. 2). In his opinion, in view of the permanent lack of societal agreement on certain issues, decision-making by means of an elected body is “not just an effective decision-procedure, it is a respectful one” (ibid., p. 158). This is the case because it respects the existence of different views about the “truth” (even if it may be absolute), and grants them all equal standing.

            For my part, I would like to take the idea of “dignified” legislation in a different direction. The dignity of legislation can be viewed, to some extent, like a promissory note. Recognition of the dignity of legislation raises expectations for corresponding conduct by the legislature, i.e., recognition of the importance of its exercise of the decision-making process, and anchoring its decisions in clear, detailed legislation. Over 200 years ago, Thomas Jefferson – one of the Founding Fathers of the United States, the principal author of the Declaration of Independence, and the third President – addressed the vital need for establishing rules, regardless of their content, noting:

Whether these forms be in all cases the most rational or not, is really not of so great importance. It is much more material that there should be a rule to go by, than what that rule is that there may be an uniformity of proceeding in business, not subject to the caprice of the Speaker, or captiousness of the members. It is very material that order, decency and regularity, be preserved in a dignified public body [Thomas Jefferson, A Manual of Parliamentary Practice, Sec. I (2^nd. Ed., 1812)].

            While this refers to the need for establishing a legislative procedure, it also points to the importance of establishing clear procedures that do not allow for fleeting caprice or changing needs, but rather provide for clear, dignified decisions upon the relevant questions.

            Other thinkers who have addressed the characteristics of legislation, among them Joseph Raz – a prominent philosopher of law, ethics and politics – have pointed to the basic need for creating clear legislation that enables people to plan their conduct intelligently:

All laws should be prospective, open, and clear. One cannot be guided by a retroactive law […] The law must be open and adequately publicized. If it is to guide people they must be able to find out what it is. For the same reason its meaning must be clear. An ambiguous, vague, obscure, or imprecise law is likely to mislead or confuse at least some of those who desire to be guided by it [Joseph Raz, The Authority of Law: Essays on Law and Morality (1979)].

            If that is the case in regard to ambiguous law, then absolute silence – which leaves the public and the courts in a fog – is all the more problematic. The disagreement among my colleagues on the question of interpreting the legislative silence in regard to parallel service, including the position that entirely rejects the authority, testifies to the importance of an explicit arrangement of the matter. In fact, in the matter before us, this is of even greater importance inasmuch as the issue of parallel service affects the foundations of the structure of the Israeli regime, and requires an in-depth examination of the relationship between the prime minister and the institution of the Government. As Israel approaches its 68^th birthday, we can expect that the process of the development and maturing of Israeli law will lead to a clear, lucid institutionalization and arrangement of the structure, powers and relationships of the governmental authorities.

5.         I would add that Jewish law emphasizes the practical importance of legislation, and the need for establishing clear, detailed arrangements for guiding the public, and particularly the Executive authority. Thus, the Torah requires that a King of Israel “when he sits on the throne of his kingdom, he shall write for himself in a book a copy of this law […] and it shall be with him, and he shall read in it all the days of his life […] keeping all the words of this law and these statutes, and doing them” (Deut. 17:18-19; and see Sefer HaChinuch, Mitzva 503).

            “Translating” this into 21^st century language shows us that Jewish law ascribed great importance to creating a detailed, obligatory legislative framework, for reasons similar to those noted by Jefferson: the need to ensure that the Executive Branch not act on the basis of passing whims, while exploiting its great power, but rather subjugate its discretion to transparent, clear, uniform rules. In effect, the requirement that the king always have the entire Torah with him, in all its 613 mitzvot – and not, for example, just the Ten Commandments – demonstrates that loosely anchored principles are insufficient. The Executive must be provided with detailed legislative protocols that define its path. Of course, the requirement that the king read the Torah all the days of his life shows the need for the Executive to internalize the legislative procedures.

            Another aspect of Jewish law relates to the role of the Knesset. About a hundred years ago, Rabbi Abraham Isaac HaKohen Kook – later the Chief Rabbi – established the rule that “because the laws of the realm also relate to the general situation of the public, in the absence of a king, those legislative rights revert to the people as a whole”. Rabbi Kook explains that the elected representatives of the people – which, I would add, now means the Knesset – fulfil the role of the king (Rabbi Abraham Isaac HaKohen Kook, Responsa Mishpat Kohen, 144, para. 15 (Hebrew)). The requirement that the king write and read the Torah, and keep it with him, thus emphasizes the “duty” of the Knesset not only to protect the rule of law, but also to establish it in appropriately detailed arrangements that will guide the public.

            Of course, the gap between the ideal and the real is unavoidable, and any expectation of the immediate, full arrangement of every matter in primary legislation is unrealistic – certainly in view of modern reality. However, the State of Israel is nearly seventy years old, but we have not yet been provided with a comprehensive legislative arrangement of the regime, the various governmental authorities and the relationships among them – as we see from the matter before us. Although I do not agree with the result that my colleague Justice H. Melcer reached, his thorough and enlightening opinion highlights the current deficiency, and demonstrates the ambiguity created by the silence of the constituent authority on an issue of primary importance. An examination of the current Basic Law: The Government shows that there is appropriate attention to detail in some matters. Thus, for example, the eligibility rules for ministers are defined (sec. 6), the number of ministers in the Government is limited (sec. 5(f)), there are arrangements for the termination of ministerial tenure and for replacing a minister (secs. 22-24). However, the above discussion demonstrates that, to a large extent, primary issues are absent. Can the prime minister serve as a minister? Can he serve as the only minister? Is there a minimum number of ministers?  Answers to these questions can be supplied by general legal doctrines, as we have done in the matter of this petition. However, as we approach the span of a life (Psalms 90:10), it would be fitting that the State address the matter of parallel service in clear, express legislation.

            I would emphasize that this is particularly so in regard to the matter at hand – delineating the fundamental character of the Executive Branch, including such basic elements as defining the status of the prime minister, and the relationship between him and the members of the Government. It is but proper that the fundamental structure of the Israeli regime be given express, coherent constitutional expression, rather than be created by ad hoc judicial precedents that are not founded upon the express directives of the Knesset.

6.         Indeed, as this Court has repeatedly explained, we do not have the authority to order the legislature to legislate (HCJ 4491/13 Academic Center for Law and Business v. Government of Israel, para. 48 of the opinion of President A. Grunis (July 2, 2014)). However, calling upon the legislature – or more precisely, upon the constituent authority – to anchor the fundamental structures of the Israeli regime in the Basic Laws is not an order. On the contrary, it is “judicial advice” intended to improve, advance and clarify the constitutional core (see Liav & Orgad, pp. 441-445) in an attempt to achieve a delineation  of a reasonable, balanced arrangement that will limit the gray area, and thereby lessen the extent of judicial intervention in regard to the matter of parallel service.

            There is nothing new in our holding in regard to the possible connection between extreme unreasonableness and deviation from authority, as the matter is well-founded in the case law. In this sense, implementing the warning of voidance relies upon a legal analysis of the issue. Along with this, we should emphasize that the warning does not order the legislative arrangement of the matter of parallel service. It is motivated by the desire to limit judicial intervention, and expresses both respect for the legislative institution (in the spirit of Waldron, cited above), and the value of mutual respect among the authorities – constituent, legislative, and executive. Exposing the warning signals that light up, permits the Knesset and the Government to make a timely choice of a course of action that may render future judicial intervention unnecessary.

            To state it more concretely, my opinion is that it is possible to contemplate judicial intervention in regard to the subject of parallel service on the basis of the quality and quantity of the ministries held by the Prime Minister, on the basis of unreasonableness that translates into a lack of authority. In the absence of an express constitutional arrangement, there is a vacuum that, as a rule, leads to a broadening of the Court’s discretion. In view of the importance of the issue of parallel service, we may have no choice but to conduct future judicial review of the matter. However, from my perspective, it would be better if the Knesset were to express its view, as comprehensively as possible, in order to clarify the legal situation, reduce the need for future review, and at the very least, reduce its scope. Thus, for example, an arrangement that would expressly address not only the general authority for parallel service, but also the number and nature of the portfolios that a prime minister may hold, and the conditions therefor, would contribute to directing the practice, and to governmental stability and development.

7.         Lastly, I would like to respond briefly to the opinion of my colleague President M. Naor (paras. 23-25 of her opinion), who is of the opinion that it would not be appropriate to issue a warning of voidance, and that an examination of the subject of the exercise of discretion, as opposed to the existence of authority for parallel service, deviates from the arguments presented in this petition. I will begin with the practical aspect. Even had a warning of voidance not been issued – and precisely because the ground of reasonableness was not addressed before us, as my colleague rightly emphasized – it would be possible to file a new petition focused upon this point immediately following the rendering of this judgment. That being the case, the warning of voidance serves as a kind of “stay of execution” before future petitioners, as it grants the Government a period of eight months for an in-depth examination of the issue of parallel service, including the possibility of addressing it in the Basic Laws, as I emphasized above.

            From a legal perspective, we should bear in mind that there are two aspects to the ground of reasonableness (see Margit Cohen, Unreasonableness in Administrative Law: Comparative Aspects and Some Normative Comments, in Theodor Orr Volume 773, 792, Aharon Barak & Ron Sokol eds. (2013) (Hebrew); for a different approach, see Itzhak Zamir, Judicial Review of Administrative Decisions: From Practice to Theory, 15 Mishpat Va’asakim 225, 262 (2012) (Hebrew)): one, sometimes referred to as “the new reasonableness”, requires that an authority weigh all the relevant considerations deriving from the purpose of the law, and only them, and grant each one its appropriate weight. However, there is another aspect to reasonableness, which might be termed “classic reasonableness”, and which is the central to the matter at hand. In referring to this aspect, the case law already stated sixty year ago “that the matter of reasonableness is actually but one of the forms of deviation from authority” (CA 311/57 Attorney General v. Dizengoff and Associates Ltd., IsrSC 13 1026, 1037 (1959)). That is the case where clearly extreme unreasonableness is concerned, which clashes with the objective of the relevant law and its purpose.

            It is true, as the President noted, that the Petitioner chose not to relate to the ground of reasonableness, including its classical aspect. Of course, it is its right to “bet the house” and argue that the Prime Minister is not authorized, in any case, to serve as a minister – an argument that was even accepted by my colleague Justice H. Melcer. However, we cannot ignore the fact that various arguments presented by the Petitioner – for example, the burden upon the Prime Minister, or the possible harm that parallel service presents to the principle of the separation of powers and the independent status of the Government – have direct impact upon the subject of reasonableness, at least in its classical sense. In practice, both sides related to the hypothetical possibility that the Prime Minister might chose to hold all the ministries – a subject that is certainly relevant to a consideration of the ground of reasonableness. Therefore, even though I found that the Petitioner’s arguments were insufficient to deny the authority for parallel service, it is appropriate to examine their potential weight in regard to the interpretation of the scope of the authority, such that it be consistent with the demands of reasonableness. Therefore, we are left no choice but to say that arguments that were considered in this Petition in regard to the interpretation of the silence of Basic Law: The Government in regard to parallel service underlie the warning of voidance. “Two hundred includes one hundred”, and the remedy of absolute denial of parallel service also comprises the remedy of partial denial, for the same reasons and upon the same grounds: the difficulties in realizing it, which may have consequences for the interpretation of the Basic Law.

            In summary, the ground of reasonableness was not directly raised before us, and therefore, I will not express an opinion as to the concrete, factual grounds that are the subject of the petition. Nevertheless, a principled, theoretical analysis of the issue leads me to the conclusion that we should not erect a wall separating reasonableness from authority, and that the issue of reasonableness constitutes a part of the examination of the question of authority. In my view, issuing a warning of voidance advances the full examination of the subject of parallel service, and is desirable form the perspective of the relevant bodies – from the Government to the constituent authority.

8.         In conclusion, I concur with my colleagues President M. Naor, Deputy President E. Rubinstein, and Justice S. Joubran that the petition should be denied, subject to a warning of voidance, as stated in the opinion of the Deputy President, with which Justice Melcer concurred in his alternative position.

 

Decided by a majority opinion, against the dissenting opinion of Justice Melcer, to deny the petition by reason of the fact that the Prime Minister has the authority to hold additional ministerial portfolios. This, subject to the position of Deputy President Rubinstein and Justices Melcer and Hendel in regard to a “warning of voidance”.

Given this 5^th day of Nissan 5776 (April 13, 2016).

 

 

 

 

H.C.J  65/51

 

 

JABOTINSKY AND KOOK

v.

WEIZMANN

 

 

 

In the Supreme Court sitting as the High Court of Justice.

[July 20, 1951]

Before: Smoira P., Dunkelblum J., Cheshin J., Agranat J., and Silberg J.

 

 

 

            Administration of Justice - Limits of judicial power - Failure by President of State to perform statutory duty as to formation of new Government - Not justiciable - Mandamus - Application for order nisi - Intervension by Attorney-General.

           

                The High Court will not issue an order of mandamus against the President of the State directing him as to the method of carrying out his duties under section 9 of the Law of Transition, 1949. Such a matter is not justiciable.

               

                By section 11(d) of the above-mentioned Law "The Government which receives a vote of no-confidence from the Knesset, or which has decided to resign, shall immediately tender its resignation to the President of the State, but it shall continue to exercise its functions pending the constitution of a new Government in accordance with the provisions of this Law." Section 9 provides that "after consultation with representatives of the party groups in the Knesset, the President of the State shall entrust a member of the Knesset with the task of forming a Government." The Government having resigned on February 14, 1951, following upon a vote of no confidence, the President held consultations with the representatives of the parties and entrusted the Prime Minister with the task of forming a new government. When the latter declined to do so, the President notified the Speaker of the Knesset that as a result thereof and of the consultations he had held, he had reached the conclusion that pursuant to section 11(d) of the Law of Transition the Government which had resigned must remain in office until the formation of a new Government after general elections.

 

                The petitioners, members of the Knesset, contended that under section 9 it was the duty of the President, once one member had declined to accept the task of forming a new government, to entrust it to any other of the remaining 119 members of the Knesset, before concluding that it was necessary to hold general elections. They applied for an order of mandamus.

               

                Held: The President although in a sense the highest public officer in the State, is not semble a "public officer" for the purposes of that part of section 7 of the Courts Ordinance, 19401), which empowers the Supreme Court. sitting as a High Court of Justice to give orders to public officers in connection with the execution of their duties. Notwithstanding that the jurisdiction of the High Court under Article 43 of the Palestine Order in Council, 19222), "to hear... matters necessary to be decided for the administration of justice", is wider than that conferred by section 7, it does not extend to the subject of the petition, which raises a matter that is not amenable to judicial determination and decision, but is one affecting the executive and political, and not the ministerial, powers of the President.

 

                Joint Anti-Fascist Committee v. Attorney-General of the United States (71 S. Ct. 673) referred to.

               

                The Attorney-General appeared at the hearing of the petition to object to the issue of the order nisi by virtue of his powers under section 6 of the Law of Procedure (Amendment) Ordinance, 1934, which gives him the right to intervene in any matter pending before "any civil or criminal court" if it appears to him that the rights of the Government of Israel are involved or that it is necessary to do so in the public interest.

               

                Held, overruling an objection to his appearance, that the High Court is a "civil court" within the meaning of section 6, and that rule 4 of the High Court Rules, 1947, which provides that an application for an order nisi will be heard ex parte, does not bind the court to hear the application in the presence of the petitioners alone. The very nature of the petition justified the intervention of the Attorney-General at the present stage in the proceedings.

 

English case referred to:

(1)        The Parlement Belge; (1879-80), 5 P.D. 197.

 

American cases referred to:

(2)        U.S. v. Aaron Burr; (1807), Robertson's Rep., I, 121.

(3)        Bandini Petroleum Co. v. Superior Court; 52 S. Ct. 103.

(4)        Allen-Bradley Local No. 1111 ect. v. Wisconsin E. R. Board; 62 S. Ct. 820.

(5)        Tennessee Pub. Co. v. American National Bank; 57 S.Ct. 85.

(6)   Joint Anti-Fascist Refugee Committee v. Attorney-General of the United States; 71 S. Ct. 673.

(7)        Aetna Life Ins. Co. of Hartford, Conn. v. Haworth; 57 S. Ct. 461.

(8)        David Muskrat v. United States; 1911, 31 S. Ct. 250.

(9)        Mississippi v. Johnson; (1867), 4 Wall. 475, L. ed. 437.

(10)      McCulloch v. Maryland; (1819), 4 Wheat. 316, 4 L. ed. 579.

 

S. Fishelev for the first petitioner.

R. Nohimovsky for the second petitioner.

H. H. Cohn, Attorney-General (with Naomi Salomon) intervening.

 

SMOIRA P., giving the judgment of the court.

 

            This is an application for an order nisi against the President of the State, requiring him to appear and show cause why he should not call upon a member of the First Knesset1) to form a new government and, if he fail, why one member after another should not be called upon until one of them finally succeeds in constituting a government which will enjoy the confidence of the Knesset. The petition is based upon an expression of no-confidence by the Knesset on February 14, 1951, in the government headed by Mr. Ben-Gurion, and upon the submission to the President of the government's resignation on the same day.

            The following facts are set out in the petition.

           

            The Prime Minister submitted the resignation of the government to the President on February 14, 1951, and on February 18 and 19, 1951, the President held consultations with the representatives of the various parties in the Knesset. On February 21, 1951, the Prime Minister visited the President and on February 25, 1951, the President sent a letter to the Prime Minister which concluded as follows:

           

            "...I have decided, before invoking the final remedy - the remedy of elections - to request you to make a further effort to reach a stable and satisfactory solution, within the framework of the present Knesset, and to form a new government which will enjoy the support of the majority of its members.

           

            I know that this will not be easy to achieve in the present situation, but I am convinced that it is my duty to request it of you.

           

            I would ask you to inform the other parties with whom you will consult of my request, and to convey to them my hope that they will cooperate with you so that a stable and satisfactory arrangement may be reached. I pray that you may succeed."

 

            The Prime Minister, in his reply to the President's letter of February 27, 1951, wrote:

           

            "If, Mr. President, you see any prospect of the formation of a government which will enjoy the confidence of a majority of the Knesset, it is for you to approach the representatives of any of the parties which voted against the present government. If any one of them succeed in forming a government, I shall gladly hand over my office to him with my sincere good wishes for success in his task.

           

            If this should not be possible and the majority of Mapam Herut. the United Religious Front, the Communists and the General Zionists1) who voted against the government, are unable to form a government, even for a period of transition, then section 11(d) of the Law of Transition, 1949, will come into operation. This obliges the present government, of which I have the honor to be the head, to remain in office until the formation of a new government, after elections."

 

            On March 5, 1951, the President sent a note to Mr. Yosef Sprinzak, the Speaker of the Knesset, in which he wrote, inter alia : -

           

            "After reading the reply of Mr. Ben-Gurion and as a result of the consultations with representatives of the parties in the Knesset, I have reached the conclusion that the government which resigned should remain in office in accordance with the Law of Transition until the formation of a new government after the elections."

 

            On March 21, 1951, the petitioners requested an interview with the President. They were informed that his state of health did not permit him to receive them and on March 28, 1951, the petitioner, Eri Jabotinsky, sent a letter to the President's private secretary in these terms: -

           

            "We wished to try and convince the President that it is his duty to impose upon one of the members of the Knesset the task of forming a government which would function until the convening of the Second Knesset but which would in the meantime enjoy the confidence of the present Knesset. I do not think there is any point in stating my grounds to the President here. The majority of them are known from the debates in the Knesset and from the press - in particular Ha’aretz. The Law of Transition lays down the President's duty in this matter in clear terms. The letters of the President to Mr. Ben-Gurion and to the Speaker of the Knesset also show clearly that the President has not yet imposed the task of forming a government upon any member of the Knesset and that after his failure with Mr. Ben-Gurion, he discontinued his efforts. These points are all well known. As far as the political arguments which we wished to raise in our conversation with the President are concerned, his state of health will no doubt prevent him from considering them in the period permitted by the present circumstances.

 

            In view of the impossibility of discussing the matter fully with the President I am now considering bringing the case at the beginning of next week before the Supreme Court - the only body which can determine the legality of the position. I would ask you to convey to Dr. Weizmann that, in so doing, I have no intention of offending him personally in any way whatsoever. I have long been of opinion that our Supreme Court should gradually become the final arbiter in constitutional questions affecting the State. The seriousness of the matter now in issue and the need for its legal clarification create the opportunity for the Supreme Court to enter upon this task."

 

            On April 16, 1951, the petitioners lodged this application. They submit that the President of the State had no authority to approach the Knesset directly on a political or legal-constitutional question. Their main contention is that the President has contravened the provisions of section 9 of the Law of Transition, 1949, in that for a lengthy period of more than two months he has failed to discharge his legal and constitutional duty of imposing upon one of the members of the Knesset the task of forming a new government.

 

            The petition also contains the following submissions:

           

            The President infringed the rights of the Knesset when, without first finding out whether the member whom he called upon would accept the task, he charged that member of the Knesset with the task of forming a new government and did not see fit to charge any of the other 119 members of the Knesset with the same task.

           

            In consequence of the failure of the President to fulfill his duty, a situation has been created which is inconsistent with the law of the State. In addition, the government which has resigned - which is in fact continuing to function without enjoying the confidence of the First Knesset - is an illegal government. It is the duty of the President, no matter what the consequences may be, to bring about the formation of a new government which will enjoy the confidence of the Knesset. The present situation destroys parliamentary and democratic rule and violates the principle of the collective responsibility of the government towards the Knesset. If the same government in which the Knesset has no confidence, continue functioning, then the Knesset will he given no opportunity of expressing again its lack of confidence. It has done so once and no new vote will add anything. As a result, the government which has resigned has in fact the full power of doing what it likes, untrammeled by law or the opinion of the Knesset.

           

            The petitioners do not see a remedy for the situation in the fact that July 30, 1951, has been fixed by law as the date for the elections to the Second Knesset. They submit that for a period of approximately five months - until the formation of a new government after the elections and the convening of the Second Knesset - an illegal situation will continue.

           

            The Knesset cannot force the President to discharge his legal and constitutional duty. It is only the Supreme Court, sitting as the High Court of Justice, which can order the President to charge a member of the Knesset with constituting a new government.

           

            This is a summary of the petition.

           

            The Attorney-General, having learned of the presentation of this petition, appeared on the day of the hearing and asked leave, in terms of section 6 of the Law of Procedure (Amendment) Ordinance, 1934, to submit his arguments in the matter since it appeared to him that the rights of the Government of Israel were involved and it might be injurious to the public interest to hear the petition in his absence.

           

            He raised the preliminary point that no petition of any kind against the President of the State could be entertained by this court. Mr. Nohimovsky objected to the appearance of the Attorney-General at this stage - namely, before the issue of an order nisi. He submitted that although the Supreme Court, sitting as the High Court of Justice, is a "civil court" within the meaning of Article 38 of the Palestine Order in Council1), it is not a civil court within the meaning of section 6 above, where the expression is employed in contradistinction to a "criminal court." He further submitted that in terms of rule 4 of the High Court Rule, 1937, a petition for an order nisi is to be heard ex parte.

           

            The court rejects these arguments of Mr. Nohimovsky for two reasons.

           

            (a) Section 6 referred to above speaks of "any civil or criminal court," and there is no reason for excluding the High Court of Justice from the expression "civil court" in the comprehensive sense in which it is used in Article 38 of the Order in Council. In our opinion, the very nature of the petition brought before this court requires that the Attorney-General should be afforded the right of intervention, even at this stage.

           

            (b) It is true that the Rules of 1937 provide that an application for an order nisi should, as a general rule, be made ex parte. They do not, however, bind the court to hear such au application in the presence of the petitioner alone.

           

            The Attorney-General submitted two arguments: -

           

            (1) That this court will not entertain an application against the President of the State;

           

            (2) That this court has no jurisdiction to hear the petition.

           

            The first argument is that the President of the State enjoys general immunity and cannot be brought before the courts. The second argument is that in accordance with the existing law, this court has no jurisdiction to deal with the present petition.

 

(In the course of his argument counsel here referred to the Bible, the Talmud, and the works of Maimonides, but the court, holding that these sources were not relevant in the case, continued:)

 

            In passing to more mundane sources, the Attorney-General compared the position of the King of England and his immunity from all claims before the courts with that of our President. As authority for this proposition he relied upon Blackstone, as quoted in the case of the Parletment Belge (1). We there find statements such as these: "Our king", says Blackstone, "owes no kind of subjection to any other potentate on earth. Hence it is that no suit or action can be brought against the king, even in civil matters, because no court can have jurisdiction over him ...authority to try would be vain and idle without an authority to redress, and the sentence of a court would be contemptible unless the court had power to command the execution of it, but who shall command the king?" And in the same judgment Brett L.J., relying upon Blackstone, states that the real principle upon which the immunity is based is that the exercise of such jurisdiction would be incompatible with the king's regal dignity. The Attorney-General also wished to deduce from Article 46 of the Palestine Order in Council that the principle, precluding the bringing of the king before the courts as incompatible with his dignity, also applies to the President of the State of Israel and that this court may not therefore enquire into the actions of the President.

           

            These arguments moved Mr. Fishelev, counsel for the petitioners, to contend that these principles apply to an absolute monarchy and have no place in the democratic regime of the State of Israel.

           

            We too are of the opinion that the writings of Blackstone on the position of the King of England have no relevance here. An apt answer to this approach was given in the year 1807 by Chief Justice Marshall of the United States in his judgment in the case of United States v. Aaron Burr (2). The question that arose in that case was whether it was possible to summon the President of the United States as a witness for the defence and to order that he appear. Marshall C.J. said, inter alia: -

           

            "Although he (the King) may, perhaps, give testimony, it is said to be incompatible with his dignity to appear under the process of the court. Of the many points of difference which exist between the First Magistrate in England and the First Magistrate in the United States, in respect to the personal dignity conferred upon them by the constitutions of their respective nations, the court will only mention two. (1) It is a principle of the English Constitution that the King can do no wrong, that no blame can be imputed to him, that he cannot be named in debate. By the Constitution of the United States the President, as well as every other officer of the government, may be impeached and may be removed from office on high crimes and misdemeanors. (2) By the Constitution of Great Britain the Crown is hereditary and the monarch can never be a subject. By that of the United States, the President is elected from the mass of the people, and, on the expiration of the time for which he is elected, returns to the mass of the people again. How essentially this difference of circumstances must vary the policy of the laws of the two countries in reference to the personal dignity of the executive chief, will be perceived by every one."

 

            I shall not add any comments of my own to these dicta of the distinguished Chief Justice of the United States. Every one will appreciate that in regard to the question of immunity before the courts, the position in this country is analogous to that in the United States and not to that in England.

           

            Whether the President is to enjoy immunity is not to be gathered by reference to the immunity of a monarch. In view, however, of the decision which we have reached on the question of jurisdiction, we need not decide in this case whether the President enjoys immunity or not.

           

            As I have said, the Attorney-General, in the course of his argument, placed the emphasis upon this court's lack of jurisdiction to deal with the petition and grant a mandamus against the President and it is, in our opinion, the answer to the question whether this court has jurisdiction which determines the fate of this petition.

           

            On this question too, lengthy arguments were addressed to us, and points raised which are irrelevant. It is our first task, therefore, to limit the scope of our consideration. The matter before us is a constitutional one. It is an accepted rule, as laid down also in the United States, that "Constitutional questions are not to be dealt with abstractly", Bandini Petroleum Co. v. Superior Court; (3), at p. 108. "It is a familiar rule that the court will not anticipate the decision of a constitutional question upon a record which does not appropriately present it", Tennessee Pub. Co. v. American National Bank; (5), at p. 87.

           

            In the light of this principle we shall confine our discussion:

           

            (a) to the subject-matter of the case, namely, the alleged contravention of section 9 of the Law of Transition, as argued by the petitioners;

           

            (b) to the prayer, namely, the granting of a writ of mandamus against the President.

           

            The basic provision defining the jurisdiction of this court in the matter before us is section 17 of the Law and Administration Ordinance, 1948, which lays down that: -

           

            "So long as no new law concerning law courts has been enacted, the law courts existing in the territory of the State shall continue to function within the scope of the powers conferred upon them by law."

           

            It follows that, in the absence of a law extending its jurisdiction, the High Court of Justice in the State of Israel has no wider powers than those which were enjoyed by it in the time of the Mandate. Counsel for the petitioners emphasised, in fact, that they do not ask us to assume powers wider than these, but they request that we exercise the jurisdiction conferred upon us by law. Their submission, so they say, is de lege lata.

           

            The law relating to the jurisdiction of this court is to be found in Articles 38 and 43 of the Order in Council of 1922 and section 7 of the Courts Ordinance of 1940. Nothing relevant to the present case can be learned regarding jurisdiction from Article 38, which merely provides that the courts "hereinafter described shall exercise jurisdiction in all matters and over all persons" in the country. This jurisdiction is defined, however, in Article 43 of the Order in Council and in section 7 of the Ordinance.

           

            As I shall explain later there is no necessity for us to determine the extent of our jurisdiction under section 7(b) of the Courts Ordinance. 1940, which confers jurisdiction upon this court to issue orders of mandamus and injunctions against public officers and public bodies. We are in fact of the opinion that the President of the State is not a "public officer" within the meaning of the definition in the Interpretation Ordinance of 1945, though he is, in a wider sense, the highest public officer in the State.

           

            As I have said, however, there is no need for us to determine our jurisdiction under section 7(b) of the Courts Ordinance since this court has decided on numerous occasions that the limits of its jurisdiction under Article 43 of the Order in Council are wider than the limits laid down in section 7 of the Ordinance.

 

            I agree with the submission of counsel for the petitioners that we must decide the question of our jurisdiction de lege lata. With this, however, we put an end to all their submissions based upon the constitutions of other countries. The doctrine of impeachment, in the various forms which it assumes in different countries, has no relevance for us in this case. It is inconceivable that this court would assume to itself a power such as that of impeachment without a specific provision in the law to that effect. Counsel for the petitioners conceded, moreover, that the purpose of impeachment is to remove the head of the State from his office by reason of the commission of an offence such us treason or some other serious offence. This is stated expressly in the constitution of the United States, and this is the interpretation given to the expression "haute trahison" in the French constitution. And the petitioners have stated repeatedly that they do not seek the removal of the President but an order of mandamus.

           

            We return to the only question before us, namely, whether this court has jurisdiction to issue a mandamus against the President of the State in respect of his alleged failure to act in accordance with section 9 of the Law of Transition, 1949. We can decide this question de lege lata only on the basis of Article 43 of the Order in Council. We do not accept the contention that us the President is not mentioned in the Law and Administration Ordinance of 1948, for that reason alone we have no jurisdiction to deal with the petition. The whole force of statute law - which provides for the norm and not for exceptions - lies in its power to create machinery for dealing with situations which do not yet exist when the law is promulgated. Section 11 of the Law and Administration Ordinance, 1948, provides expressly, moreover, that the existing law shall remain in force subject to such modifications as may result from the establishment of the State and its authorities. The fact, therefore, that the high office of President of the State did not actually exist when the Law and Administration Ordinance was enacted does not stand in the way of our applying the law today to the President. Had the petition on its merits fallen within the provisions of Article 43 of the Order in Council of 1922 it would have been possible and necessary to entertain it.

           

            The field of enquiry is narrowed down to this: is the subject-matter of the petition and the prayer among the "matters necessary to be decided for the administration of justice?" Is the present petition a matter which calls for judicial decision? Some assistance in clarifying this problem may be derived from an examination of authorities in the Supreme Court of the United States .

 

            In terms of Title 3 Section 2 of the American Constitution, "cases and controversies" are made amenable to judicial decision, and these expressions - and the limits of judicial power in general - have been defined in a long list of cases. The most recent judgment is that of Justice Frankfurter of April 30, 1951, in the case of Joint Anti-Fascist Refugee Committee v. Attorney-General of the United States (6). Let me cite some extracts from this judgment: -

           

            "...in a case raising delicate constitutional questions it is particularly incumbent first, to satisfy the threshold enquiry whether we have any business to decide the case at all. Is there, in short, a litigant before us who has a claim presented in a form and under conditions 'appropriate for judicial determination’?” Aetna Life Ins. Co. of Hartford , Conn. v. Haworth, (7).

 

            At first sight there is a distinction between the language of the American Constitution which makes "cases and controversies" amenable to judicial determination, and the language of Article 43 which employs the expression "matters." But it has been held in the United States that the expression "cases" is wider than the expression "controversies". See David Muskrat v. United States (8) at p. 954.

           

            "The judicial article of the Constitution mentions cases and controversies. The term "controversies", if distinguishable from "cases", is so in that it is less comprehensive than the latter, and includes only suits of a civil nature."

 

            Mr. Nohimovsky, counsel for the petitioner, emphasised the wide term "matters", from which he sought to derive our jurisdiction. Even if we assume that the term "matters" is wider than "cases and controversies" we have still to enquire what are the matters which are submitted to our jurisdiction. They are only those "matters... necessary to be decided for the administration of justice." By the addition of these words the legislature has set limits to the area of "matters" in the ordinary meaning of that expression. In regard to this it was submitted by counsel for the petitioners that we must interpret the expression "justice" by reference to philosophical, religious and moral sources. We are not prepared to adopt this system of interpretation which is completely unlimited in scope and obscures the limits of judicial power.

           

            Justice Frankfurter said the following in connection with this problem in his judgment referred to above: -

           

            "Limitation on 'the Judicial Power of the United States' is expressed by the requirement that a litigant roust have 'standing to sue', or more comprehensively, that a Federal Court may entertain a controversy only if it is 'justiciable'. Both characterizations mean that a court Grill not decide a question unless the nature of the action challenged, the kind of injury inflicted, and the relationship between the parties are such that judicial determination is consonant with what was generally speaking the business of the Colonial Courts and the Courts of Westminster when the Constitution was framed. The jurisdiction of the Federal Courts can be invoked only under circumstances which to the expert feel of lawyers constitute 'a case or controversy'. The scope and consequences of the review with which the judiciary is entrusted over executive and legislative action require us to observe these bounds fastidiously.''

 

            With all respect to the learned judge, I find in these remarks an excellent definition of the limits of judicial power. The reply to the question what are the matters which are necessary to be decided for the administration of justice cannot be drawn from the wide sea of philosophical, religious and moral relationships. To do w would be to widen those limits so as to include every matter necessary for human progress. On the other hand such limits cannot be defined by a purely geometrical formula. In leaving the matter to be decided by "the expert feel of lawyers" the learned judge readily concedes the intellectual impossibility of an accurate and absolute definition. We, as judges, must find the answer to the question whether the matter, in the language of the United States judgment, is "appropriate for judicial determination" or, in the language of our Article 43, is "necessary to be decided for the administration of justice", by bringing to bear our legal and judicial understanding.

           

            We also attach importance to the words of Justice Frankfurter relating to the "business of the Colonial Courts and the Courts of Westminster". We find in this remark the connecting link between the language of the American Constitution and that of Article 43 of the Order in Council.

           

            The question before us, therefore, is whether the petitioners have placed before the court a matter which is justiciable, a matter which is proper for judicial determination.

           

            The complaint of the petitioners is that the President of the State has failed to comply with section 9 of the Law of Transition or, at the least, that he has not exhausted the possibilities envisaged in that section by making repeated attempts to impose the task of forming a new government upon one of the remaining 119 members of the Knesset after the first member upon whom that task was imposed failed in his attempt. The petitioners ask us to order the President to continue imposing the task of forming a government upon members of the Knesset until one of them who undertakes this mission succeeds in forming a new government which enjoys the confidence of the Knesset.

 

            According to the reasoning which underlies the petition it will be the duty of this court to examine and determine whether, in his first or second or third attempt to do what is requested of him, the President of the State has discharged the duty imposed upon him by section 9 of the Law of Transition, or whether he must continue in his attempts. In order to decide the matter this court will have to consider the effectiveness of the imposition of the task in question upon one or other of the members of the Knesset. It is sufficient to point out the consequences of such a process in order to show that the present petition falls completely outside the limits of judicial determination.

           

            If the "expert feel of lawyers" is to be invoked, it may be said generally that the whole subject of the duty of forming a government in accordance with section 9 of the Law of Transition is non-justiciable and beyond the scope of judicial determination. The relationships involved are in their very nature outside the field of judicial enquiry; they are relationships between the President of the State, the government and the Knesset, that is to say, the executive and parliamentary authorities. If the question of a failure to comply with section 9 should arise, the remedy must be found through parliamentary means, that is to say, in the reaction of the Knesset to a government which, in its opinion, does not even possess the right to exist in transition in accordance with section 11(d) of the Law of Transition. That section provides that the government, after its resignation, shall continue in office until the formation of a new government in accordance with the provisions of that Law.

           

            It is highly significant that counsel for the petitioners did not cite a single authority from other countries in which a court directed the President of the State, in any form whatsoever, to follow a particular course in the discharge of his executive functions.

           

            We have reached the conclusion that the matter before us is not one which is amenable to judicial determination and decision. We point with satisfaction to the accord between our decision and those of the Supreme Court of the United States which, as is well known, has considerable experience in examining the boundaries between the respective functions of the three authorities of the State. Counsel for the petitioners invited us to follow in the footsteps of the Supreme Court of the United States, and strongly relied upon a saying that that court is in fact the Constitution. Just because of that, however, it is desirable to point to the care taken by the American Supreme Court not to overstep the boundary. Here are some examples.

 

            In the case of Mississippi v. Johnson (9), the court was asked to issue an injunction against the President of the United States restraining him from enforcing a law passed by Congress relating to the administration of the State of Mississippi. It was argued by the petitioners that the law in question was ultra vires the Constitution of the United States.

           

            Chief Justice Chase drew a distinction in his judgment between the ministerial and the executive and political duties of the President of the United States, and said:-

           

            "An attempt on the part of the judicial department of the Government to enforce the performance of such (executive and political) duties by the President might be justly characterized, in the language of Chief Justice Marshall, as 'an absurd and excessive extravagance' . . . It was admitted in the argument that the application now made to us is without a precedent and this is of much weight against it . . . The fact that no such application was ever before made in any case indicates the general judgment of the profession that no such application should be entertained."

 

            I may mention incidentally that there is in the last sentence quoted a hint of the conception mentioned by Justice Frankfurter in his recent judgment in which he speaks of the "expert feel of lawyers". In his judgment in the case of M'Culloch v. Maryland (10), Chief Justice Marshall deals with the boundaries between the functions of the legislative authority and the judicial authority, and we may say, following him, that were we to accede to the request of the petitioners in this case, we would exceed the limits of judicial authority and trespass upon the preserves of the political and executive authorities. In the language of Chief Justice Marshall, "this court disclaims all pretensions to such a power. ' '

           

            The question brought before us is one affecting the executive and political powers of the President, and is beyond the scope of judicial authority.

           

            We accordingly dismiss the petition for want of jurisdiction.

           

                                                                                            Petition for order nisi refused.

                                                                                            Judgment given on July 20, 1951.

HCJ 98/69

           

A. BERGMAN

v.

MINISTER OF FINANCE AND STATE COMPTROLLER

 

 

The Supreme Court Sitting as the High Court of  Justice

 

Before Agranat P., Sussman J., Landau J., Berinson J. and Manny J.

 

 

Editor's synopsis -

            Section 4 of Basic Law: The Knesset, requires that elections to the Knesset shall be "general, nationwide, direct, equal, secret and proportional". Sections 4 and 46 of this Law require that any amendment to section 4 be approved by an absolute majority of the Knesset. In 1969, the Knesset passed a Law providing public financing of the election campaign for the seventh Knesset, scheduled to be held in 1970. According to the provisions of this Law, which was not passed by an absolute majority, such funding is granted solely to party factions which are represented in the outgoing Knesset.

           

            The Petitioners contend that the funding provisions of the new Law are void for two reasons. The Law was initiated by several members of the Knesset as a private bill, whereas legislation that imposes a financial burden on the Treasury must be initiated by the government. By providing public financing only for existing party groups, the Law infringes upon the requirement in section 4 of the Basic Law that elections be "equal" and is therefore invalid since it was not passed by the absolute majority required under section 46 of the Basic Law, i.e., a majority of the members of the Knesset, at each stage of the legisation.

           

            The court issued an order nisi, calling upon the Minister of Finance and the Government Comptroller, to show reason why an order should not be issued directing the Minister to refrain from making any expenditure under the election financing Law and directing the Comptroller to refrain from performing any act which the said Law authorises or requires him to perform. The Respondents appeared in opposition to the order nisi.

               

                The court ruled that the order nisi be made absolute, holding:

           

1.      Whatever may be the law in England, there is no rule in Israeli law that forbids members of the Knesset from initiating a private bill that imposes a financial burden on the Treasury.

           

2.      All of the other terms in section 4 of the Basic Law, "general, nationwide, direct, proportional", relate both to the right to vote and to the right to be elected. There is no reason not to give the word "equal" a similarly broad meaning.

 

3.      The absolute denial of any funding to new party groups is a substantial violation of the principal of equality established in section 4 of the Basic Law, and therefore requires the support of an absolute majority of the Knesset at each stage of the legislation.

 

Note - The Knesset thereafter amended the Law to include financing for new party groups. The amendment was passed by an absolute majority of the Knesset members, although it is possible that such a majority was not required since, arguably, the new Law, as amended, satisfied the requirement of equality. At the same time, the Knesset enacted a second Law, also by absolute majority, which retroactively confirmed the validity of all legislation concerning election procedures that had been enacted previously. The effect of the Confirmation Law was to prevent judicial review of all such legislation previously enacted, even if it violated one of the entrenched provisions.

 

            For a later case dealing with the requirement of equality as it relates to public financing of elections, see the Rubinstein case, infra, p. 60. For a case dealing with the implications of the requirement that elections be "equal" with respect to public broadcasting time allowed each party, see the Agudat Derekh Eretz case, infra, p. 21. Both cases concerned legislation passed after the Confirmation Law, though the effect of the Confirmation Law was considered by the court in the Agudat Derekh Eretz case.

           

Israel case referred to:

[1]   E.A. 1/65, Yeredor v. Chairman of the Sixth Knesset EIections Committee 19 P.D.(3)365.

 

The Petitioner appeared in person.

 

M. Shamgar, Attorney-General, and Z. Terlo, Director-General of the Ministry of Justice, for the Respondents.

 

 

 

 

 

JUDGMENT

 

            LANDAU J.: On April 30, 1969 this court issued an order nisi against the Minister of Finance, to show cause why he should not refrain from any expenditure under section 6 of the Knesset and Local Authorities Elections (Financing, Limitation of Expenses and Audit) Law 1969 (hereinafter: the Financing Law); and against the State Comptroller - why he should not refrain from any act which he is directed or authorised to implement pursuant to sections 11 and 12 of the Financing Law. The order nisi was issued on the petition of Advocate Dr. A. Bergman, on two principal grounds: one related to the manner in which the Financing Law was initiated and the other to the manner in which this Law was passed in the Knesset.

           

            The first argument is that since the Financing Law imposes a monetary burden on the Treasury, it could only have been initiated by the Government. In fact the Law was initiated by six Knesset members as a private bill (see H.H. 807). The Petitioner bases this argument on the English constitutional practice that finds expression in section 87 of the Standing Orders of the House of Commons, of 1958 (Halsbury-Simonds, vol. 28, p. 442). The Petitioner argues that these directives embody an important and necessary constitutional principle that the legislative branch may not decide on a monetary expenditure on its own initiative, as it does not bear the responsibility for finding sources of revenue to balance the new expenditure.

 

          The Petitioner's second argument is that the passage of the Financing Law was invalid and in violation of the principle of the equality of elections as provided in section 4 of Basic Law: The Knesset (hereinafter: the Basic Law). According to section 46, which was added to the Basic Law in 1959:

         

The majority required under this Law to amend sections 4, 44 or 45 will be required for resolutions of a plenary meeting of the Knesset at every stage of the legislation, other than the debate upon a motion for the agenda of the Knesset. For the purpose of this section "amendment" - either express or implied.

         

          And section 4 of the Basic Law reads:

         

The Knesset shall be elected by general, national, direct, equal, secret and proportional elections, in accordance with the Knesset Elections Law; this section shall not be varied save by a majority of the members of the Knesset.

         

          The first reading of the Financing Law was passed by the Knesset by a majority of 24 to 2 (D.H., Sixth Knesset, Fourth Session, p. 1377), that is, by less than a majority of the number of Knesset members (61). As for the third reading, the Knesset records (ibid., p. 1674) state merely that the Law was "adopted", without a recorded count of the votes. The Petitioner argues that this session too was not attended by a majority of the Knesset members, and the Attorney-General, who appeared for both the Respondents, did not dispute that. In any event this is immaterial, since section 46 requires a "special" majority at every stage of the legislation.

         

          This petition raises potentially weighty preliminary questions of a constitutional nature, relating to the status of the Basic Laws, and to the justiciability before this court of the issue of the Knesset's actual compliance with a self-imposed limitation in the form of an "entrenched" statutory provision, such as section 4 of the above-mentioned Basic Law. However, the Attorney-General relieved us of the need to deliberate the matter by stating on behalf of the Respondents that they "do not take a position on the question whether the legal validity of a legislative enactment is a justiciable matter before this court, since they are of the opinion that the petition must fail on the merits". He so stated in his heads of argument and repeated it in his oral argument on the return day, and when asked what position he would take if the court found the petition substantiated, he replied that in such event he would put himself at the court's disposal to make his submissions on the question of justiciability. It is therefore up to the court to decide whether it wishes to examine the question of justiciability of its own accord. We have decided not to do so because, for obvious reasons, the substantive problems raised here require urgent resolution, whereas clarification of the preliminary constitutional questions would entail separate, lengthy deliberation. We therefore leave the question of justiciability open for further consideration and, clearly, nothing in this judgment should be taken as an expression of opinion on that matter. The Respondents have also not disputed the Petitioner's standing to file the petition, so that question also does not arise before us.

 

            We now return to the Petitioner's two arguments. The first can be answered briefly. Whatever the law in England - and we find it unnecessary to delve into that question - our law has no statutory provision to prohibit members of the Knesset from initiating a private bill that imposes a monetary burden. Indeed, the Knesset Rules adopted by this body under section 19 of Basic Law: The Knesset indicates the contrary. In the seventh chapter of the Rules, entitled "Debate on Bills of Knesset Members", rule 105(a) provides: "Every member of the Knesset may propose a bill". There is no limitation as to the content of the bill. Section 5 of the Law and Administration Ordinance, 1948, provides that

           

the budget of the Provisional Government shall be fixed by an Ordinance of the Provisional Council of State

           

and again nothing is said as to the manner of initiation of such budgetary legislation on the part of the legislature. The Financing Law here considered is sui generis: it is not a budgetary law in the technical sense, since it does not authorize the government to expend money but rather obliges the Minister of Finance to put certain sums at the disposal of the Chairman of the Knesset. There are no special provisions in our positive law as regards the procedure for enacting a statute of this kind. The Minister of Finance will have to find sources of finance for the monetary expenditure involved in the implementation of this Law, and if he encounters difficulty in doing so that is a matter which, constitutionally speaking, pertains to the relations between the legislative branch and the executive branch, which does not concern this court.

 

            That leaves the principal question: does the Financing Law contradict section 4 of the Basic Law? First, however, we wish to make it clear that this court ought not involve itself in the debate conducted in the Knesset and by the general public concerning the system of state financing of the general activities of the political parties and their specific activity in the elections campaign. Much has been said and written about the deficiencies of this system from the public perspective, while respected members of the Knesset representing a large majority of the House, including the initiators of the Law, have defended this system as necessary in our political reality. They stress, on the one hand, the improvements brought about by this Law compared to the previously prevailing state of affairs, especially as regards limitations on election expenditures and their auditing - two subjects that have no necessary connection with the matter of state funding; and they endeavour, on the other hand, to appease the critics by pointing to the experimental character of the entire Law which is intended to apply only to the seventh Knesset elections.

 

            This entire public debate falls outside the range of our judicial interest - the problem before us is confined within its legal framework. What is the Petitioner's legal argument? He argued, half-heartedly, that "it is doubtful whether the allocation of funds to political parties is an allocation for purposes of state", citing an opinion of the Massachusetts Supreme Court that such is not an expenditure for a "public purpose" in the sense of that state's constitutional law (197 N.E.2d 691). We have no similar provision in our law, which suffices to dispose of this argument. For us, therefore, the question is framed within the context of section 4 of the Basic Law alone. In this respect the learned Attorney-General argued that there is no contradiction between equality in the elections as secured under section 4 of the Basic Law and the provisions of the Financing Law. He contended that the entire section 4 deals only with the elections system in its technical sense, as evidenced by the marginal heading of the section, and that the principle of equality it embodies means only that each voter has one vote of equal weight - that and no more. In support of this argument he referred us to the legislative history of this provision, which has its origins in the Mandate period, in rule 4 of the Knesset Israel Elections Regulations of March 1, 1930, and also to the constitutions of other countries in which the principle of "one man one vote" finds explicit recognition. He argued that this technical principle should not be confused with the fundamental principle of equality for all before the law, which is likewise expressed in various constitutions. But we do not have a written constitution. It is true that we too recognize the equality of citizens before the law as a fundamental principle of our constitutional regime, yet that principle has not been embodied in a written constitution or even in a provision of a basic law that requires a special majority for amendment. Hence there is nothing to prevent the legislature from deviating from this principle even in a law passed by an ordinary majority. The Financing Law should be seen as part of the Elections Law, and section 4 of the Basic Law itself says that the Knesset shall be elected "by general elections in accordance with the Knesset Elections Law". In any event, if the Financing Law deviates at all from the principle of equality, it is but a minor deviation which is to be accepted so that other important goals are achieved, such as preventing the undue fragmentation that could result from too rigid an application of the equality principle in financing.

           

            With all due respect we must dismiss this argument because it does not answer adequately the Petitioner's main complaint: that limitation of the funding to parties represented in the present, sixth Knesset exclusively, is prejudicial to equality of opportunity for those new candidates lists that seek to take part in the campaign for the seventh Knesset elections but were not represented in the sixth Knesset.

 

            We do not accept the argument that section 4 of the Basic Law merely prescribes technical directions regarding the conduct of the elections. We are prepared to assume that the draftsmen of this section envisaged primarily the principle of "one man one vote" when they prescribed that the elections should be "equal". But we do not believe that this exhausts the full meaning of the programmatic provision in the Basic Law. Each of the adjectives "general, national, direct, relative" has two facets: they address both the right to elect and the right to be elected, and there is no reason why the word "equal" should not be given the same broad meaning. This is indicated by the order of the sections: first section 4 with its general significance, and then the more specific provisions in section 5 regarding the right to vote, and in section 6 - regarding the right to be elected. Were it otherwise, and the word "equal" referred only to the right to vote, it would have been more natural to include the idea of "one man one vote" in section 5.

           

            If the principle of equality in section 4 extends to the right to be elected, it must also find expression in an equality of opportunity for the various candidates lists that contend in the Knesset elections. For in our elections system the election candidates join in candidates lists that are submitted either by a party group of the outgoing Knesset or - in the case of a new list - by 750 voters (section 4 of the Knesset Elections Law [Consolidated Version], 1969). In this way the individual candidate aspires to achieve his set goal, and by the same token the will of the individual voter is realized in voting for the list.

           

            This interpretation of the equality provision in section 4 is consistent with the fundamental principle of the equality of all persons before the law. To be more precise, it applies as an emanation thereof in the specific area of the law of elections. But it can also exist independently without resting upon a provision in a written constitution that expressly declares the principle of the equality of all persons before the law. We do not have such an express provision, neither in a written constitution nor in an "entrenched" provision of a basic law. Nevertheless this unwritten principle is the soul of our entire constitutional regime. It is therefore only right - precisely in the borderline cases, where a statutory provision can be construed in two ways - that we prefer the construction that upholds the equality of all persons before the law over one that sets it at naught. This fortifies our construction of the equality provision in section 4.

           

            After all, what is the simple meaning of the words "equal elections"? What would we say, for example, about a statutory provision that allowed only one list of candidates? Could such elections be called "equal" because each voter still has one vote? Or, assuming the Financing Law determined that only the largest party was entitled to state funding - we would certainly regard that as a glaring violation of the equality principle in section 4. In other words, this section has the potency to prevent violations of equality also beyond the narrow confines of "one man one vote".

 

            Before we examine the Financing Law in light of our above-mentioned comments, we wish to note three preliminary points. First, a Law of the Knesset is presumed to be valid as adopted. Therefore this court's primary inclination must be to uphold the law and not to strike it down, even when the argument against it is that it contradicts an "entrenched" statutory provision (and it is stressed again that everything here said presupposes that the matter is justiciable before this court). Second, we are in an area that is far removed from the idea of equality before the law in its simple classic meaning, that is, equality of rights for the citizen as an individual. There is no better example of this classic meaning than the rule of "one man one vote". This equality must be guarded without compromise. However, as we draw away from this fundamental meaning of the principle of equality before the law, so it clashes with other important principles to which it must defer. Thus, for example, in the Yeredor case[l] this court affirmed a decision to disqualify a list of candidates whose purpose was to undermine the existence of the State of Israel. Likewise, with regard to the matter of state funding for the elections: all agree that the political parties should not be equated absolutely with each other by being allocated equal funds, regardless of the party's size, although the campaign needs of a small party might require as much of these means as a larger party. And all agree furthermore that the principle of equality in financing should not be applied in such a way as to encourage the submission of candidates lists that would not have formed at all were it not for the temptation that they would receive an advance against the funding. We also know of phenomena of inequality in the general election laws, primarily the minimum percentage of votes required in order to gain representation in the Knesset, and similarly the requirement that a new list must deposit a bond, and the fact that its representatives do not participate in the election committees except as observers after publication of the list. All these restrictions inevitably derogate from absolute equality. It was not argued here that for this reason they are invalid. Third, and related to the preceding point, the issue before us - state financing of elections - is complicated and complex by its very nature and its legislative solution entails diverse practical considerations that require special expertise, which this court lacks.

           

            Without overlooking all this, we have concluded that the absolute denial of funds to new lists of party candidates substantially prejudices these lists' equality of opportunity, thus violating the equality principle in section 4 to an unjustifiable degree that goes beyond a minor deviation from that principle. We have already mentioned the provision in the Knesset Elections Law that allows any 750 voters to submit a candidates list. This opens the doors of the Knesset to new party groups. Such opportunity is one of the hallmarks of our democratic regime in general and our elections system in particular. It might be argued that the situation of a new list in the elections to the seventh Knesset is no worse than it was in the elections to the sixth Knesset, since such a list can still finance its election expenditures from private sources. We would answer that this is not the correct comparison to make; rather the current situation of such a list should be compared with the current situation of the existing party groups, and, if so, it is clear that the new list is at a real disadvantage compared to the others, because these are entitled to receive substantial sums from the state coffers to finance their expenditures whereas the new list is denied that right.

 

            In the Knesset debates on the Financing Law, the merits of a method of finance based on the balance of party power in the outgoing (sixth) Knesset was contrasted with a method based on the new party balance in the incoming (seventh) Knesset. The Knesset preferred the first method and one of its main reasons for so doing was the danger that short-lived lists would be formed because of the temptation to receive an advance on the funding allocation. This danger can be countered without causing the inequality that we have found to be unlawful, by promising a new list funding without an advance payment and only retrospectively after it has stood the test of the elections and gained at least one seat. All this on condition that the list has consented in advance to the audit by the State Comptroller in accordance with the Financing Law, and has met all the other conditions specified in the Law. It appears to us that provisions of this nature could still be added to the Financing Law without undue difficulty, without changing the existing provisions as regards the parties represented in the sixth Knesset and without overturning the entire situation, so as to avoid the apprehended inequality. It need hardly be said that in making this suggestion we in no way presume to encroach upon the sovereignty of the Knesset as the legislative authority.

           

            The Knesset accordingly has two courses from which to choose: it can reenact the financing provisions in the Financing Law, despite their inherent inequality, if the majority required under sections 4 and 46 of the Basic Law is mustered; or it can amend the Law so as to remove the inequality, and we have indicated above a possible way of doing so.

           

            We therefore make absolute the order nisi in the sense that the first Respondent, the Minister of Finance, is to act pursuant to section 6 of the Financing Law only if the financing provisions in the Law are reenacted with the required majority, or if the Law is amended so as to remove the inequality contained therein. We see no need to issue any order against the State Comptroller. Respondent no. 1 shall pay the Petitioner his costs in the petition.

           

            Judgment given on July 3, 1969

The Supreme Court sitting as a Court of Civil Appeals

CA 4926/08

 

Before:                                                The Honorable Justice E. Rubinstein                                                                                                 

The Honorable Justice S. Joubran                                                      

The Honorable Justice N. Hendel

 

The Appellants:                      1.    Nashef Wael & Co.

                                               2.    Abd Elkader Nashef

                                               3.    Tibi Muneer

                                               4.    Munder Haj Yichye

                                               5.    Hadran Ltd.

 

v.

 

The Respondent:                    The National Water and Sewage Authority

 

An appeal against the judgment of the Haifa District Court sitting as a Court of Water Affairs dated March 13, 2008, in Appeals Committee 111/01 and in Appeals Committee 620/05, given by the Honorable Judge R. Shapira, and Representatives of the Public Mr. S. Shtreit and Mr. G. Hermelin.

 

On behalf of Appellants 1-4:      Adv. Tibi Taufik

 

On behalf of Appellant 5:           Adv. Eyal Sternberg; Adv. Ortal Mor

 

On behalf of the Respondent:    Adv. Limor Peled

 

JUDGMENT

 

Justice S. Joubran:

 

1.The appeal presented before us addresses the Water (Extraction Levy) Regulations, 5760-2000 (hereinafter: the "Water Regulations" or the "Regulations"), the legality thereof and the validity of the process of promulgation thereof. I shall present the matters hereinbelow in an orderly manner.

 

Normative and Factual Background

 

2.On February 4, 1999, the Knesset adopted the State's Economy Arrangements (Legislative Amendments to Attain the 1999 Tax Year Economic Policy and Budget Goals) Law, 5759-1999. In the framework thereof, the legislator indirectly introduced amendments to the Water Law, 5719-1959 (hereinafter: the "Water Law"). The amendment to the Water Law resulted in significant changes in the regulation of water extraction, motivated by the desire to create a network of incentives, both positive and negative, for the extraction of water from a wide range of sources, in order to optimize the level of water utilization,  in light of the regional and national water shortage. Since, the historical background of Israel's water economy, which created the need for legislative amendments, was elaborately described in HCJ 9461/00 The Jordan Valley Water Association, Collective Agricultural Association Ltd. v. The Minister of National Infrastructures (not published, December 12, 2006), it is not necessary to elaborately address it again here (for elaboration, see: ibid, paragraphs 5-14), or to address all of the aspects of the said amendment. Suffice it to say that the amendment of the Water Law focused on Sections 116-124. The dispute in this appeal revolves around Section 116 which, in its previous wording, is relevant to the case at hand, prescribed as follows:

 

Extraction 116. Levy

(a)The Minister of National Infrastructures, with the consent of the Minister of Finance, upon consultation with the Water Council, and with the approval of the Knesset's Finance Committee, shall determine a levy to be paid by water extractors to the State's Treasury (hereinafter – an Extraction Levy) (b)The Extraction Levy shall be imposed on all extractors of water from a specific water source and shall be calculated in accordance with the units of the volume of the extracted water; the extent of the levy shall reflect the regional and national shortage of water, and may be different for each water source and with respect to each of the purposes of the water and the uses thereof. (c)The Extraction Levies shall be updated in the same manner the water tariffs are updated pursuant to Section 112(a), mutatis mutandis. (d)The water extractors and the consumers from the water source with respect to which a levy shall apply, shall be granted the opportunity to voice arguments prior to the extraction levy being determined.

 

In 2007, Section 116 was re-amended and extensive changes were made in the framework thereof, however the wording that is relevant to the case at hand is the wording quoted above. By virtue of this section, and in accordance with the authority vested therein in sub-section (a), the Minister of National Infrastructures promulgated the Water Regulations, in which the extent of the extraction levies was determined. A distinction was made between consumption and extraction purposes (residential, agricultural and industrial consumption) in the case of the Coastal Aquifer, while a uniform levy was prescribed for all of the consumption and extraction purposes in the case of all the other sources.

 

3.In the case before us, the contents of the Regulations do not bear any special significance, but the significance lies in the manner in which they were adopted and the extent to which the secondary legislator abided by the terms and conditions prescribed in Section 116(d) of the Water Law. The section provides that the water extractors and consumers must be given an opportunity to voice their arguments prior to the determination of the extraction of levies. Meaning, Section 116(d) requires the secondary legislator to grant the water extractors and consumers an opportunity to voice their arguments before determining the extent of the extraction levy with respect to a certain water source. In the case before us, such an opportunity was indeed granted, after a notice, regarding the extraction levy that was about to be determined, was published in Hebrew in the national printed press. The Appellants, however, who possess extraction licenses, did not voice their arguments regarding the extraction levies that were determined in the Regulations, at the designated time. The Water Regulations were published on July 30, 2000, and annual bills, based on the extent of the levies determined therein, were sent to the Appellants for the volume of water approved in the extraction licenses they possess. The said charges related to the years 2000-2005.

 

The Dispute between the Parties and the Litigation To Date

 

4.The Appellants filed two appeals to the Haifa District Court, sitting as a Court of Water Affairs (Appeal Committee 111/01 and Appeal Committee 620/05), which were heard together, and in which they argued against being charged water levies during 2000-2005, pursuant to the new Water Regulations.

 

The Appellants argued, inter alia, that the Water Regulations are ab initio null and void and lack any validity towards them since they were not published in the Arabic press. As such, Appellants argue they were de facto denied their right to voice their arguments regarding the contemplated levies prior to the promulgation of the Regulations. They argue that since notice of the Regulations was not published in the Arabic press, arguments unique to the Arab population were not presented to the drafters of the Regulations, and therefore the Regulations are ultimately flawed in that they ignore considerations that are unique to the Arab population of extracters and consumers, in general, and to the Appellants, in particular. It is alleged that the importance of the right to be heard (audi alteram partem) is elevated in this case, due to the severe impairment to property rights entailed in the adoption the Regulations. The Appellants wished to convince the District Court that the lack of publication in Arabic, amounts to prohibited discrimination. The Appellants further argued against the legality of the extraction levy charges in their case, because they were imposed via a flawed process, since the charges for 2002-2004 were retroactively imposed in 2005, contrary, so they claim, to the annual charging procedure. Additionally, Appellants complained that they continued to be charged after the suspension of the extraction licenses in their possession, since, so they claim, upon the suspension of their licenses, they cease being extractors for the purpose of the extraction levy. In this matter, the Appellants added that once the collection processes were stayed and the licenses were suspended, they should not have been charged with a special levy for extracting water without a license. Furthermore, according to the Appellants, the Respondent should have considered the water loss, i.e., the amount of water that is lost during the extraction process, as a result of the archaic extraction system in their possession. The Appellants stated, in this context, that the Respondent should assist them in renovating and maintaining that system, rather than charging expensive levies. The Appellants further claimed in this matter that, due to the state of the agricultural sector, they had not managed to exhaust the license's quota, while the Respondent charges as per the amount approved in the extraction license.

 

5.The Respondent, on the other hand, claimed that the Appellants had extracted water for many years without paying the levy and the ancillary payments. According to the Respondent, the imposition of the levies upon all of the extractors was done by law and not by the Regulations. The Regulations only prescribe the rate of the levy. The Respondent further claimed that there is no obligation in the law to publish the adoption of the Regulations in Arabic and that the Appellants did not demonstrate that publishing in the national and Hebrew press is insufficient or that it prejudices the Arabic speaking population. The Respondent further claims that the Appellants did not establish a factual basis which could support their claim regarding prohibited discrimination. Finally, the Respondent claims that if the Appellants were of the opinion that the records of the actual extractions were mistaken, they should have taken care of that immediately, informed the Respondent, and disputed the amounts specified in the bills when they were prescribed or charged, and they cannot raise such a claim at this stage.

 

6.On March 13, 2008, the Court of Water Affairs (the Honorable Judge R. Shapira and Representatives of the Public S. Shtreit and G. Hermelin) denied the appeals, after ruling that the authority's act of publishing the invitation regarding the Regulations only in Hebrew, does not deviate from the zone of reasonableness. The Court reviewed the case law that addresses the status of the Arabic language and reached the conclusion that in the case presented before it, there is no obligation to publish the invitation in the Arabic language press. Appellants' claim regarding prohibited discrimination was also denied, since it was not proven that publishing only in the national press prejudices the Arab population. The Court stated, in this context, the purpose of the publication is to reach the broad public, and just as there are Hebrew speakers who do not read Hebrew newspapers, there are Arabic speakers who do read Hebrew newspapers, and therefore, so it was ruled, one cannot accept the argument that the publication in the national press, prejudices the entire Arab population. The Court additionally ruled, after hearing the merits of their arguments and determining that they are irrelevant to the matter of prescribing the extracting levies, that even had the invitation been published in the Arabic press and the Appellants would have consequently voiced their arguments against the Regulations, this would not have changed the Regulations that were promulgated or the water levy charges that were imposed thereon.

 

The Appellants' claims regarding the amounts of extracted water and the water loss were also denied, as it was ruled that they were irrelevant to the matter at hand. The Court ruled that to the extent that the Appellants extract less water than that stated in the extracting license, it is presumed that they shall update the Respondent so that it shall update the charges in accordance with the actual consumption. The same applies with respect to the alleged loss, as it was ruled that the levy is calculated based on the amount of water extracted, and if the system is inefficient, it is the Appellants', not the Respondent's, duty to improve the system and take action to repair it. As for the Appellants' argument regarding the delayed arrival of the bills, the Court ruled that it is incumbent on the Appellants to update the authority of their current address. It was further ruled that the Appellants know that they possess water extraction licenses and that they are required to pay for the extraction of water, and therefore, if and to the extent the notices did not arrive on time or to the correct location, they should have approached the authority, inquired about the delay, and updated their mailing address. Additionally, the Court was convinced that the bills were sent to the Appellants each year.

 

And now, to the appeal before us.

 

The Parties' Arguments

 

7.In the framework of the appeal, the Appellants reiterate some of the arguments they raised before the Court of Water Affairs. Additionally, they claim to an error in the judgment, as the legal analysis therein relies on the current wording of Section 116(d), while the Regulations were promulgated by virtue of the authority vested by the previous wording of Section 116(d), and they emphasize that the law obligates granting a right to be heard, and that this is not a right granted to the general public, but rather to the limited public of water extractors and consumers of a relevant water source, who could be adversely affected by the levy.

 

8.The Respondent, on the other hand, claims that the Court's reliance on the new wording of the section is irrelevant to the rulings in the judgment, since both wordings essentially address the same matter, i.e., granting the water extractors and consumers the right to be heard, and the two wordings differ in the entity responsible for determining the extent of the levy and which is obligated to grant the opportunity to voice the arguments. The Respondent also claims that there is no duty to publish in Arabic, and that in cases where the legislator wished to impose such a duty, it did so explicitly. It was further argued that that even if there is such a duty, non-compliance therewith does not result in the revocation of the Regulations. The Respondent further argues that the Regulations apply to the broad public of water extractors and consumers, and not, as the Appellants argue, to a limited public. It was argued, in this matter, that the right to be heard in the case of a general change is not the same as the right to be heard in the case where the change’s effects are personal and direct. Furthermore, the Respondent claims that even were it to be ruled that the Appellants' right to be heard was violated, application of the relative voidness doctrine to the case at hand leads to the result that the Regulations should not be revoked, since, as ruled by the Court of Water Affairs, the Appellants' arguments against the Regulations would not have changed them. The Respondent also mentions in this context, that, if and to the extent the Appellants' principled argument were to be accepted, there is yet an additional consideration against the revocation of the Regulations – the Appellants' indirect attack of the Regulations. The Respondent also draws attention to the severe damage that shall be caused to the water economy if the Regulations are revoked.

 

9.During the hearing before us, we suggested that the parties communicate and reach a settlement regarding the extent of the Appellants' accumulated debt. On April 24, 2012, the parties' attorneys informed us that Appellant 4 reached an agreement with the Respondent regarding payment of his debt, and his specific matter, therefore, is no longer before us. The discussions between Appellants 1-3 and Appellant 5 and the Respondent did not bear fruit, and therefore we must rule in the matters raised in the parties' arguments that were presented above.

 

Discussion

 

10.The main question underlying the appeal before us relates to whether or not there was a duty, pursuant to Section 116(d), as worded at the time of the publication of the Regulations, to also publish the invitation to voice arguments against them, in Arabic. The answer to this question is divided into two. First we shall rule whether or not there is a principled obligation to publish the invitation in Arabic. If and to the extent our conclusion shall be that there is indeed such an obligation, we shall examine the consequence of the violation thereof in the case before us, in terms of the relief.

 

Prior to discussing the central issue, I shall note that I do not find merit in the Appellants' other arguments and I agree with the Court's conclusions in its judgment on those matters. As for the wording of the section upon which the Court relied, I find that there is no material difference between the two wordings in terms of the question of principle that the Appellants raise, and in my opinion the outcome that flows from one wording, is also relevant to the other, and vice versa.

 

The Duty to Hear the Water Extractors and Consumers

 

11.The rules of natural justice, including the right to be heard (audi alteram partem rule), were, as most fields of administrative law, developed through case law. In the framework of these rules, it is a known rule that the administrative authority is obligated to grant an individual the opportunity to voice his arguments prior to reaching a decision that may prejudice him (see: HCJ 4112/90 The Association for Civil Rights in Israel v. GOC Southern Command, PD 44(4) 626, 637-638 (1990); HCJ 654/78 Gingold v. National Labor Court, PD 35(2) 649, 655 (1979); HCJ 113/52 Zachs v. The Minister of Trade and Industry, PD 6(1) 696, 703 (1952)). The right to voice arguments, however, is not an absolute right, but rather, is a right that is subject to exceptions that were outlined and formulated over the years (see, for example, HCJ 7610/03 Yanuh-Jat Local Council v. The Minister of Interior, PD 58(5) 709 (2004); HCJ 598/77 Deri v. The Parole Board, PD 32(3) 161, 165 (1978); HCJ 185/64 Anonymous v. The Minister of Health, PD 19(1) 122, 127 (1965); HCJ 3/58 Berman v. The Minister of Interior, PD 12(2) 1493 (1958) (hereinafter: "Berman")). In Berman, it was ruled that the right shall be applied according to the criterion of adverse affect. According to the criterion, the right to voice arguments exists de facto for whoever is or may be adversely affected by the authority's actions (see: Berman, page 1508; Baruch Bracha "The Right to be Heard: In Regulation Promulgation Procedures As Well? Following HCJ 1661/05 Hof Azza Regional Council v. The Knesset" Moznei Mishpat 6 428 (2006) (hereinafter: "Bracha, The Right to be Heard"). This is the rule, and it has its exceptions. One of the exceptions relates to the proceedings of secondary legislation. As early as in Berman, it was ruled that the duty to hear arguments "does not apply to legislative actions, or to actions of a governing-sovereign nature, in the proper sense of this term" (Berman, 1509; in this context, see also: HCJ 335/68 The Israel Consumer Council v. Chairperson of the Commission of Inquiry for the Supply of Gas, PD 23(1), 324, 334 (1969); Baruch Bracha Administrative Law 223 (Volume A, 1987); Yoav Dotan Administrative Guidelines 125-126 (1996); Raanan Har-Zahav The Israeli Administrative Law 292 (1996)).

 

12.The ruling in Berman, pursuant to which the right to be heard does not apply in legislative procedures, in general, and in secondary legislative procedures, in particular, has been reinforced over and over again, and has recently been addressed again in the framework of the petition filed by the Gush Katif evacuees against the Disengagement Plan Implementation Law, 5765-2005, in which, inter alia, the argument regarding not granting an opportunity to voice arguments against the Disengagement Plan Implementation (Gaza Strip) Order, 5765-2005, and the Disengagement Plan Implementation (Northern Samaria) Order 5765-2005, was discussed again (see HCJ 1661/05 Hof Azza Regional Council v. The Knesset of Israel PD 59(2) 481, 719-728 (2005)). In that judgment it was ruled that the evacuation orders have legislative effect, and as such are not subject to the duty of a hearing prior to being promulgated. In this context it was emphasized that:

 

"With regard to the hearing obligation in the case of secondary legislation, the longstanding ruling in Berman is the law currently presiding in Israel, and while there are some who have expressed reservation - and there is merit to the criticism, at least in certain types of secondary legislation – the operative rule has never been changed. The Petitioners are of the opinion that it is time for a change; however we do not find, that the matter before us warrants such a change." (ibid, paragraph 427).

 

13.The essence of the matter is that according to Israel's common law, in the framework of which the rules of administrative law, including the rules of natural justice, are prescribed through case law, the authority's obligation to grant any party who could be adversely affected by its actions an opportunity to voice arguments, does not apply in a procedure of promulgating regulations of legislative effect. This exception has been subject to much criticism both in case law and in legal literature (see: LCA 3577/93 The Israeli Phoenix v. Moriano, PD 48(4) 70, 86 (1994); Aharon Barak Judicial Discretion 487 (1987); Yitzhak Zamir The Administrative Authority Volume B 1047-1048 (Second Edition, 2011); Bracha, The Right to be Heard, on page 429), and it has even been presented as an issue of principle that has not yet been ruled upon (see: HCJ 6437/03 Tavori v. The Ministry of Education and Culture, PD 58(6) 369, 378 (2004)). However, the exception still stands (see: Bracha, The Right to be Heard, page 431). Hence, only in cases in which there is an explicit statutory provision which imposes upon the authority an obligation to allow the voicing of arguments in a secondary legislating procedure, or that grants the said right to voice arguments, will the individual, who is adversely affected by the regulations, be entitled to voice his arguments, all in accordance with the terms and conditions appearing in the law. This is also the case in the case before us: The origin of the duty to allow voicing arguments in the framework of the promulgation of the Water Regulations – the right the Appellants are claiming – is not under the purview of the common law right, which, as mentioned, excludes secondary legislation procedures, but rather is under the provisions of Section 116(d) itself, which is not merely declaratory, in the sense that it declares a right that already exists, but is rather constitutive, in the sense that it creates a right, which otherwise would not exist.

 

14.In light of the above, there is no doubt that in the case at hand, the promulgation of the Water Regulations pursuant to Section 116(a), as was previously worded, is subject to the Minister of Infrastructures' obligation to give the public that may be adversely affected by the regulations that prescribe the extent of the water levy, a proper opportunity to voice its arguments. The said Section 116(d) prescribes as follows:

 

(d)       The water extractors and the consumers from the water source with respect to which a levy shall apply, shall be granted the opportunity to voice arguments prior to the extraction levy being prescribed.

 

As can be seen, all that the section prescribed is the duty to grant the opportunity to voice arguments. The section does not regulate the manner in which the authority shall fulfill its duty. Questions as to the scope of the duty and as to what derivative duties derive therefrom also arise in this context. An extensive answer to the said questions is not required in order to resolve the principled and practical dispute in the case at hand. All we are required to rule on is whether the duty to grant an opportunity to voice arguments includes the duty to inform the relevant public of the anticipated promulgation of the Regulations and to invite them to voice their arguments with respect thereto; and if the answer is affirmative, we also shall address the question of the language of notification.

 

The Duty of Informing and its Manner of Performance

 

15.There is no dispute that there is no real substance to the right to voice arguments or to the duty to grant an opportunity to voice arguments, if the individual is not informed, at the relevant time, of the administrative procedure which may adversely affect or impact him. The realization of the right is intertwined with knowledge of its existence, and of the occurrence of the event that creates the circumstances upon which its realization depends. In the case at hand, in order to be able to voice arguments regarding the Water Regulations, the extractors and the consumers must be aware of their said right and of the fact that the minister is contemplating the promulgation of regulations with respect to which they are entitled, pursuant to the law, to voice their arguments, prior to their promulgation. However, the procedure in the case at hand is not the same as the procedure in cases in which the right to voice arguments is only granted to individuals. Contrary to a private hearing that is conducted due to the authority taking an action which could adversely affect or impact a known or limited number of individuals, a public hearing takes place when the action with respect to which the hearing is required adversely affects an undefined public or a large number of persons. As clarified above, according to Israeli law, in the case of the latter category of administrative actions, the right to voice arguments is granted, in general, only if the law explicitly provided therefor.

 

16.In any event, the nature of the hearing, whether private or public, along with other parameters, prescribes the manner in which it is conducted. In the context of our case, the means by which the existence of the hearing is brought to the attention of the interested parties – be it an individual to whom the authority's decision is personally addressed or, as in our case, a large group of individuals – also varies accordingly. For example, while it can be expected that the authority take action to locate a person whose license it wishes to invalidate and invite him to voice his arguments prior to a decision being reached, the same effort is not to be expected with respect to an administrative action by which potentially all of the citizens or an undefined public of persons could be adversely affected. In such cases, general publication might be sufficient. It is clear that if it were possible to personally inform each and every person who could potentially be adversely affected that would be ideal, however, this is not feasible when dealing with a broad public. It follows that publishing the matter via popular media channels, or by any other means to which the majority of the relevant public is likely to be exposed, could be sufficient.

 

17.Indeed, other than personally contacting each person who potentially could be adversely affected, every method entails certain inadequacies, yet it is clear that a publication inviting the public to voice arguments, which reaches the majority of the public, will result in a situation in which the arguments, or at least the majority of the arguments, that are relevant to the individuals who were not exposed to the publication, and did have the opportunity to voice their arguments, are voiced by others. One of the purposes of conducting a public hearing is to ensure that the authority has the information required to reach an informed and balanced decision based on the broadest possible relevant data available at that point in time. Therefore, in matters in which there is a duty to hear arguments, it is likely that most of the data relevant to reaching the decision, which the competent authority had not seen, will appear in the arguments raised by part of the public that wishes to exercise the right to be heard that was granted thereto, and thus the purpose of imposing the duty is realized.

 

18.In light of the above, it is my opinion that even if the manner in which the authority chose to inform the public, regarding the public hearing that is being conducted, does not ensure fully informing all of the individuals who may be adversely affected by the administrative action, this does not constitute a deviation from the scope of reasonableness, and does not sacrifice the purpose of the right to be heard. This is so, since, as mentioned above, in the absolute majority of cases, excluding a few exceptions, most of the claims that relate to the matter will be argued, and consequently, the data, or at least the majority of the data, necessary for reaching a reasonable and proportional decision that is based on a broad factual basis, will be brought to the authority's attention. This is also in the case at hand. The Respondent was not required to send each water extractor and consumer a personal invitation to voice arguments in order to fulfill its duty to inform. Therefore, Respondent's decision to publish the invitation to voice arguments in the press, in and of itself, does not, in principle, deviate from the scope of reasonableness.

 

Duty to Inform in Arabic

 

19.I have expressed the position that the duty to inform, in the context of publishing the invitation to voice arguments, does not require taking measures that would ensure perfectly universal notification. Obviously, it is desirable that the information, which is the subject of the publication, reach the entire public related to the matter, so that it can exercise its legally granted right to be heard. However, as was explained, the reasonableness principle does not demand this; there is no doubt that publication that can be assumed to reach the entire public related to the matter, shall be deemed reasonable. Another question in this context is whether the duty to inform includes the duty to adjust the content of the invitation to the Arabic speaking public, by means of publishing the invitation also in the Arabic press and in the Arabic language. In my opinion this question should be answered in the affirmative. I shall specify my reasons below. But beforehand, I shall briefly address the principled case law regarding the status of the Arabic language in Israel.

 

The Arabic Language in Israel

 

20.The Arabic language is, alongside the Hebrew language, an official language in Israel, by virtue of Section 82 of the Palestine Order in Council, 1922 (hereinafter: "Section 82"), a Mandate statute that provides as follows:

 

Official 82. Languages

All the ordinances, official notices and official forms of the government and all official notices of local authorities and municipalities in areas to be prescribed by order of the High Commissioner, shall be published in English, Arabic and Hebrew. Subject to any regulations the High Commissioner may promulgate, the three languages may be used in the Government offices and the courts. In the case of any contradiction between the English version of any ordinance or official notice or official form and the Arabic version or the Hebrew version, the English version shall prevail.

21.Section 82 was adopted into Israeli law in the Law and Administration Ordinance, 5708-1948 (hereinafter: the "Ordinance"). However, the requirement to use the English language was repealed in the framework of Section 15(b) of the Ordinance, and it was provided that "any provision in the law that requires using the English language is repealed," while the obligation to use Hebrew and Arabic was maintained, so that the official status of both languages as official languages was maintained. The ramifications of this status has not yet been fully clarified and in cases previously presented to this Court concerning the practical significance of Arabic’s status as an official language, the justices have differed in their opinions (see for example: HCJ 4112/99 Adalah -- Legal Center for Arab Minority Rights in Israel v. Tel Aviv Municipality, PD 56(5) 393 (2002) (hereinafter: "Adalah"); Justice Cheshin's judgment in LCA 12/99 Mar'ei v. Sabek, PD 53(2) 128 (1999) (hereinafter: "Mar'ei")). For example, in Adalah, which dealt with the use of the Arabic language on municipal signs, Justice D. Dorner was of the opinion that "the official status of the Arabic language is not expressed only in the uses specified in Section 82. The specification in the section is not an exhaustive list. The essence of the provision is the determination of the status of the Arabic language as an official language of the State of Israel" (on page 478). On the other hand, Justice (as was his title at the time) M. Cheshin was of the opinion that the status of the Arabic language as an official language does not, in and of itself, impose a duty upon the authorities to use it other than within the boundaries drafted in the section itself. President A. Barak was of the opinion that Section 82 does not include the duty to include Arabic writing on municipal signs and ruled that the solution to the issue lies in the proper interpretation of the section authorizing the local authorities to post municipal signs, while striking a balance between the various purposes. Therefore, President A. Barak found that when interpreting the authority to post municipal signs, the balance between the special purposes of the Section (making the city and its streets accessible to the public, warning about traffic dangers, and the need for clear and legible signs), and the general purposes (the right to equality, the freedom of language and the uniqueness of the Arabic language compared to other minority languages, on the one hand; and the preferred status of the Hebrew language, and the importance of uniformity and national solidarity, on the other hand) "leads to the conclusion that Arabic writing should be added, alongside the Hebrew writing, on the municipal signs in the responding cities" (on page 419).

 

22.It appears that it will be difficult to infer from Adalah a general duty to use the Arabic language alongside Hebrew. Adalah does not extend beyond the boundaries of the narrower issue addressed therein, regarding the duty to add Arabic writing to municipal signs in mixed cities (see: HCJFH 7260/02 The Ramla Municipality v. Adalah, The Legal Center for Arab Minority Rights in Israel (not published, August 14, 2003)). It follows that the question regarding the ramifications of the status of Arabic as an official language remained unresolved and in the case at hand it requires our attention. The question at hand is whether the Respondent's duty to inform also includes the duty to inform in Arabic. While, as written above, Adalah does not have direct implications for this case, in my opinion, the issue presented before us is to be examined in accordance with one of the frameworks presented to resolve the issue in Adalah, as shall be specified below. I shall note, in this context, that I do not share the opinion expressed by the honorable Justice (as was his title at the time) M. Cheshin, in Adalah, that the status of the Arabic language and the ramifications thereof is a matter best left to the political system. The courts are the authorized interpreters of the law, and the case before us raises a question regarding the interpretation of a statute. Therefore, this is not a political matter that the court must refrain from addressing. Therefore, in the case at hand, we must ask whether to prefer President A. Barak's position and rule in the case at hand by interpreting Section 116 purposively, or rather to follow the path paved by Justice D. Dorner and analyze the implications of Section 82 on the case at hand? A third option is to cling to the language of Section 82 and examine whether the publication of the invitation to voice arguments falls within the boundaries of one of the alternatives therein, i.e. "ordinances, official notices and official forms".

 

23.It is my opinion that, in the circumstances of this case, all three options lead to the same outcome, and therefore we do not have to determine which is preferred, even though, in my opinion, the three are not necessarily mutually exclusive, as I shall clarify below. Indeed, theoretically there could be cases in which the results from applying the above methods will be different, and in such cases this Court would have to rule on this question. However, as mentioned, in my opinion, in the case at hand we shall leave this matter for further discussion. I shall now specifically discuss each of the three courses separately and elaborate on the outcome of their application.

 

Interpreting Section 82

 

A.Interpreting Section 82 – the Meaning of the Term "Official Notices"

 

24.As mentioned, Section 82, entitled "Official Languages", imposes a duty to use Hebrew and Arabic in all "the ordinances, official notices and official forms of the government". This raises the question whether the Minister of Infrastructures was, in virtue of the said duty, also obligated to publish the invitation in Arabic. It is my position that this question must be answered in the affirmative. It appears that it is not difficult to classify the invitation to voice arguments, published in the newspaper by the relevant governmental authority, as an official notice. The dictionary definition of the term "notice" is: "Information published to the public, a written notification, an announcement. Examples: Notice boards in the streets, a notice in the newspaper announcing an upcoming performance, an obituary notice. (See: Avraham Even-Shoshan, The New Dictionary – Third Volume 1252 (5727)). It follows, that textually speaking, the invitation to voice arguments that was published in the press falls within the meaning of the term "notice", and the question which remains is whether this is an official notice. In my view the criteria for classification of a notice by a given authority as an official notice should be the identity of the publishing party and the linkage between the publication and the governmental function. If a governmental authority or a party serving a governmental function publishes a notice that has a linkage to the governmental function or the work of the authority, in the framework of the function it serves, the notice is most likely an official one. On the other hand, if, for example, a city resident wishes to publish a notice on the municipal billboard (without addressing the other terms and conditions related to local government), this would be a private notice that does not fall within the definition of the term "official notice", notwithstanding the official platform on which it was published, and is therefore not subject to the duty imposed by Section 82 (see for example: CA 105/92 Re'em Engineers Contractors Ltd. v. The Nazareth Illit Municipality, PD 47 189 (1993) (hereinafter: "In Re Re'em Engineers ").

 

25.In the case before us, the invitation to the public to voice arguments was published via the national press, on behalf of parties in the Ministry of Infrastructures, and has a tight linkage to the Minister of Infrastructures' function as a secondary legislator. It would appear then that this is an official notice on behalf of a governmental ministry. Accordingly, based on the literal interpretation of the text of Section 82, there is a duty to publish the invitation, which, as mentioned, is an official notice, both in Hebrew and in Arabic.

 

While, we could stop here, I shall also analyze the matter before us in accordance with the frameworks presented by the majority justices in Adalah, in order to reinforce the outcome reached according to the approach presented in this section.

 

B.Interpreting Section 82 with Reference to the Historical Background (Justice D. Dorner's Approach)

 

26.In my opinion, even if we refrain from searching for the meaning of the term "official notice" and from answering the question whether an invitation in the press falls within its scope, thus adopting Justice D. Dorner’s interpretative technique in Adalah, we would reach the same outcome. In this context, suffice it to say that in resolving the issue, Justice D. Dorner does not ignore the historical background of Section 82, rather she establishes her interpretation of the Section upon it, and concludes that the fact that the duty to publish in English was repealed while the obligation regarding Hebrew and Arabic remained, ratifies the "status of the Arabic language as an official language of the Jewish and democratic State of Israel" (paragraph 4 of her opinion). In this matter, Justice D. Dorner summarizes as follows: "the official status of the Arabic language is not expressed only in the uses specified in Section 82. The specification in the section is not an exhaustive list. The essence of the provision is the determination of the status of the Arabic language as an official language of the State of Israel" (paragraph 5 of her opinion). Therefore, even if, as mentioned, we take this path and abandon the attempt to interpret the term "official notice", it is clear, so I believe, that a publication addressed to the entire population of extractors and consumers calling them to come and voice their arguments, is subject to the duty prescribed in Section 82, even were we to reject the approach that the publication which is the subject of this appeal falls within the definition of an "official notice". In this context the positive facet of the rights that derive from Arabic's official status and the value of equality are interconnected, as was expressed in Adalah:

 

"The conclusion, then, is that while Hebrew is the primary official language of the State of Israel, being the national language of the majority, the Arabic language's status as an official language pursuant to the amended Section 82 is meant to realize the Arab minority's freedom of language, religion and culture. […] The realization of this freedom is not limited to protecting the Arab population from a prohibition to use its language, but rather it obligates the authorities to grant the Arab minority the possibility of living its life in the State of Israel in its own language. The assumption is that Arab citizens in Israel may only know Arabic, or in any event, may only be fluent in this language. […] This purpose derives from the value of equality" (Paragraph 7 of Justice D. Dorner's opinion).

 

There can be no dispute that the intensity of the positive facet of the right deriving from the Arabic language's status as an official language and by virtue of which an individual has a claim against the authority, changes in accordance with the purpose and importance of the publication. For this matter, the right of the Arab minority "to live its life in the State of Israel in its own language" and to "only know Arabic" (from Justice D. Dorner's above words), imposes upon the authority a duty to make the information and its relevant publications accessible to the group to which the members of the Arab population belong. Otherwise, what would remain of the duty of the "authorities to grant the Arab minority the possibility of living its life in the State of Israel in its own language" other than fine words devoid of content? It follows, that in the case at hand, based on the interpretative approach adopted by Justice D. Dorner, I find that there was a duty to also publish the invitation in Arabic, by virtue of the duty in Section 82 of the Palestine Order in Council.

 

Interpreting the Duty Pursuant to Section 116(d) (President A. Barak's Approach)

 

27.As mentioned, President A. Barak was of the opinion that Section 82 does not include the duty to include Arabic writing on municipal signs, so the course he adopted in that case can provide guidance were the two above interpretation approaches to be rejected. President A. Barak turned, in this context, to the section appearing in the Municipalities Ordinance [New Version], empowering and authorizing the local authorities to post municipal signs. In this context it was noted that: "This power is a discretionary power. This discretion is never absolute […]. This is limited discretion. It is limited by the special purposes that underlie the authorizing legislation; it is limited by the fundamental values and fundamental principles of the legal system, which constitutes the general purpose of any legislative act" (paragraph 14 of his opinion).

 

28.Section 116, as worded at the time relevant to this appeal, granted the Minister of Infrastructures the power and authority (the result of the exercise of which is contingent upon the consent of the Minister of Finance, in consultation with the Water Council and with the approval of the Knesset Finance Committee), to prescribe the water levy to be paid by the water extractors to the State's treasury (Section 116(a)). Section 116(d) imposes a duty upon the Minister of Infrastructures to allow the voicing of arguments from the extractor and consumer publics, prior to prescribing new water levies. It follows that the power and authority to prescribe the water levies is already limited by a number of provisions within the section itself: The section, inter alia, limits the minister's discretion by requiring approval by additional parties and by requiring hearing the arguments of the parties which could potentially be adversely affected by the prescription of the new levy. Hence, the section imposes upon the minister a mandatory power and authority (see: Yitzhak Zamir, The Administrative Authority – Volume A 319-325 (2010)), instructing him to grant an opportunity to voice arguments, but it does not determine the terms and conditions governing the manner of exercising this power and authority. This does not imply that the Minister of Infrastructures' discretion with respect to the manner of exercising the mandatory power and authority pursuant to Section 116(d), regarding those parts not regulated by the law, is unlimited. To the contrary, the exercise of the mandatory power and authority that is defined in Section 116(d) is limited, both by the special purposes that underlie it, and by the general purposes, which, as mentioned, constitute the fundamental values and principles of the legal system. Therefore, we must consider the special purposes that underlie the duty prescribed in Section 116(d) and the general purposes, in order to examine the boundaries of the discretion granted to the Minister of Infrastructures, and the conclusion regarding the reasonableness of the decision only to publish the invitation to voice arguments in Hebrew and in the national press will naturally follow.

 

A.The Special Purposes

 

29.The duty to grant an opportunity to voice arguments in the framework of secondary legislation procedures is uncommon; one can even say, quite rare. I mentioned hereinabove the case laws that outlined the rule and the exception regarding the right to be heard (see paragraphs 11-13 above), and there is no need to repeat them. However, as mentioned above, one of the exceptions that was ruled in Berman, and was reaffirmed in the rulings of this Court, provides that, in general, the right to be heard is not applicable in legislation procedures, including secondary legislation procedures. It follows that when, in a certain matter, the legislator does impose the duty upon a minister to enable the public, which may be adversely affected, to voice arguments in secondary legislation procedures, this imposition should be viewed as an indication of the great importance of the issue at hand. Therefore, it can be said that Section 116(d) is intended to serve an purpose viewed by the legislator to be particularly important: the presentation of all of the data before the secondary legislator so that it can make an informed, proportional, and reasonable decision, based on as extensive a factual basis as possible. The flip side of this coin is granting the potentially adversely affected party the opportunity to present the minister – directly or indirectly – with relevant information for making the decision regarding the extent of the water levy, and which serves the purpose of involving a defined public in proceedings that impact it as well as signaling to that public that the authority is speaking with it rather than at it.

 

B.The General Purposes

 

30.Due to the great similarity between this case and Adalah, it seems that some of the general purposes listed by President A. Barak there (see: his opinion in paragraphs 16-21) are also relevant to the case at hand. Whereas, as mentioned, these purposes are external to the specific norm and constitute the fundamental values and principles of the legal system in Israel. It follows that it is unnecessary to further elaborate beyond that which was presented in President A. Barak's opinion, and it will suffice to list those purposes briefly.

 

31.The first general purpose, relevant to the case at hand, is the protection of a person's right to his language; the second general purpose is ensuring equality; in this context President A. Barak states that:

 

"The meaning of the matter in the case at hand is that the (local) authority must ensure equal use of its services […]. If part of the public cannot understand the municipal signs, their right to equally benefit from the municipality's services is prejudiced. Indeed, once language has a significant importance to an individual and his development, it is necessary to ensure that his opportunities as an individual are not limited due to his language" (paragraph 19 of his opinion).

 

Meaning, the purpose of making the authority's services equally accessible to individuals can be included under the general purpose of ensuring equality. In this context, President A. Barak drew attention to two additional purposes: the status of the Hebrew language and the recognition of the importance of language as an element of national solidarity and of defining the sovereign state. It does not appear that these purposes are substantial in the case at hand. The purpose of protecting the status of the Hebrew language does indeed impact the question regarding the language of signs in general, and municipal signs, in particular, since the signs are not just functional, but also bear some symbolism. One could even say that the language of municipal signage is the face of the city, and that therefore there is good reason to examine the question whether or not it is appropriate to add an additional language to the municipal signs, also in terms of the status of the Hebrew language. In the case at hand, however, the purpose regarding the status of the Hebrew language does not have much impact, since it would be difficult to say that one of the purposes of the mandatory power and authority to grant an opportunity to voice arguments is to protect the status of the Hebrew language or to promote the value of "the existence, development and flourishing of the Hebrew Language…" (In Re Re'em Engineers, 208). The same logic applies with respect to the purpose of recognizing the importance of the language as an element of national solidarity and of defining the sovereign state. On the other hand, one can think of an additional general purpose which did not appear in Adalah - the purpose of the efficiency of the administrative authority's action, and in our context this could support refraining from publishing in Arabic.

 

C.Striking a Balance between the Purposes

 

32.It is known that any purpose, when examined individually, could lead to a different conclusion. However, under the Israeli legal system, there are no absolute values and principles, rather, the view that they are relative, is predominant. It follows that after identifying both the special and the general purposes that vie for priority, each must be granted its relative weight and must be weighed against the others in order to discover the point of equilibrium (see for example, HCJ 6163/92 Eisenberg v. The Minister of Building and Housing, PD 47(2) 299, 264 (1992); HCJ 935/89 Ganor v. The Attorney General, PD 44(2) 485, 513 (1990)). It should be emphasized, in this context, that there may be cases in which balancing might lead to several points of equilibrium, any of which, if chosen when exercising discretion, would be reasonable (see: HCJ 5016/96 Chorev v. The Minister of Transportation, PD 51(4) 1 (1997)). I believe that in the case of the duty to publish the invitation to voice arguments in Arabic, the balance between the purposes of protecting an individual's right to his language and ensuring equality, including making the authority's services accessible to a language minority group, on the one hand, and the purpose of the efficiency of administrative authority's actions, on the other, leads to the conclusion that there was a duty to publish the invitation to voice arguments in Arabic. It follows that the decision in the case at hand was made by the deciding entity without having considered all of the relevant considerations – the status of the Arabic language, making the publication accessible, equality, etc. – and it can be said, on these grounds alone, that the decision is unreasonable. However, in light of the above discussed balance, it emerges that the decision deviates from the scope of reasonableness, on its merits as well.

 

33.I shall mention that Section 116(d) prescribes a duty, which can be fulfilled in a number of ways in other words, there is a scope of reasonableness, within which there are several options which the Minister of Infrastructures could have selected. For example, the Ministry of Infrastructures could have personally approached the potentially adversely affected parties and invited them to voice their arguments; however the option chosen was that of publishing in the press, an option, which, in and of itself, like its predecessor, is certainly reasonable. One can think of other reasonable means of publishing means, which the Ministry of Infrastructures could have taken to fulfill the duty to inform. The platform of publication, however, is not the only matter that should be examined; so, too, should the matter of the language of publication, which was discussed above and which the Minister of Infrastructures should have weighed and considered in his final decision.

 

34.I note that the assumption that most, even if not all, of the Hebrew reading and speaking public will encounter the publication in the Hebrew press, is definitely a reasonable one. This assumption is incorrect, however, with respect to the Arab public. Indeed, one can say that the publication in the press, in general, is a reasonable means of fulfilling the duty imposed in the framework of Section 116(d). This is even the manner adopted to inform the public regarding the deposit of a plan in the framework of the Planning and Building Law, 5725-1965 (hereinafter: the "Planning and Building Law") (see: Section 89). As clarified above, in the case of the duty to inform, the scope of reasonableness includes the possibility that the information which is the subject of the publication will not actually reach the entire relevant public. Publishing only in the Hebrew press, however, while refraining from publishing in Arabic, through a platform that is widespread among the group of Arabic speakers, is unreasonable. The reasonableness principle could not sanction a situation in which the authority published only via a platform to which the majority of the water extractors and consumers are not exposed. Similarly, a situation in which the majority of a distinct group among the extractor and consumer public is not exposed to the publication, is unreasonable as well. Yet, that is what publication in the Hebrew press is for Arab extractors and consumers, the majority of whom are likely to not be exposed to such publications, and, at the very least, whose exposure to the Arab press is significantly greater. It follows that with respect to such a public, by refraining from publishing via a platform to which the majority of such a public is exposed, and which is in their language, the authority deviated from the scope of reasonableness.

 

35.It is necessary to clarify that while different languages are spoken in the State of Israel, due to Jewish immigration from various countries around the world, this differs from the Arab population, in terms of the purpose of protecting an individual's right to his language. In Adalah, President A. Barak expressed the following, relevant to the case at hand:

 

“Does our approach not imply that residents of different towns in which there are minority groups of speakers of various languages, will now be able to demand that the signs in their towns will be in their language as well? My response is negative, since none of those languages is the same as Arabic. The uniqueness of the Arabic language is twofold. First, Arabic is the language of the largest minority in Israel, which has lived in Israel since far far in time. This is a language that is linked to cultural, historical, and religious attributes of the Arab minority group in Israel. This is the language of citizens who, notwithstanding the Arab-Israeli conflict, wish to live in Israel as loyal citizens with equal rights, amid respect for their language and culture. The desire to ensure dignified coexistence between the descendants of our forefather Abraham, in mutual tolerance and equality, justifies recognizing the use of the Arabic language in urban signs-in those cities in which there is a substantial Arab minority (6%- 19% of the population)-alongside its senior sister, Hebrew . . . […]. Secondly, Arabic is an official language in Israel (see paragraph 12 above). Many languages are spoken by Israelis, but only Arabic – alongside Hebrew – is an official language in Israel. Arabic has, then, been granted a special status in Israel. This status does not have a direct application in the case at hand, but does have an indirect application. […] the fact that the Arabic language is "official" "has surplus and unique value" (Adalah, paragraph 25).

 

These two explanations – the fact that Arabic is the language of the largest minority in Israel and an official language – justify, in our case as well, granting the Arabic language special treatment compared to the languages of other minorities. In this matter, it is clear that there is an interest that the Arab minority learn the language of the majority, which is the dominant language in the country. However, due the unique status of the Arabic language, a situation in which an individual belonging to the Arab minority in Israel is adversely affected due to only being fluent in his language, cannot be allowed.

 

Interim Summary

 

36.As presented above, I posit that the decision not to publish the invitation in Arabic and via a platform to which the Arab speaking public is exposed, is unreasonable, based upon the three above mentioned approaches: the interpretation of Section 82, both as per the term "official notice" and in accordance with Justice D. Dorner's approach in Adalah, and the interpretation of the obligation prescribed in Section 116(d), as per President A. Barak's approach. I note, in this context, that although I discussed each approach separately, this should not imply that they are mutually exclusive. While President A. Barak rejected Justice D. Dorner's interpretative approach in Adalah, his approach of interpreting power and authority, in light of their (special) underlying and (general) overarching purposes can indeed coexist with Justice D. Dorner's broad interpretation of Section 82. This is also true with respect to the interpretation of the term "official notices", which can coexist alongside President A. Barak's approach and alongside Justice D. Dorner's approach. While it may appear prima facie that in the latter matter there is an inherent contradiction, de facto, nothing stands in the way of accepting the proposed interpretation of the term "official notices" and agreeing to the approach that the overall interpretation of Section 82 must be applied based on the historical circumstances that encompassed its legislation during the Mandate period and its adoption by the Israeli legislator. This matter, however, goes beyond what is necessary in the case at hand, such that I am not required to rule on this matter here.

 

Be the preferred approach of the interpreter as it may, the conclusion that emerges is that the decision to publish the invitation to voice arguments exclusively in Hebrew and in the Hebrew press is not a reasonable decision, and, at the very least, is a decision made in violation of a statutory obligation, all as per the interpretative approach applied. It follows that the question we must now ask is: what is the consequence in the case before us? In other words, what is the warranted relief under the circumstances? I shall now turn to this question.

 

The Relief

 

37.The case before us raises two interrelated flaws. First, the lack of concurrent publication in Arabic of the invitation to voice arguments, and second the result thereof, i.e., the denial of the Appellants' right to actually voice their arguments. As for the consequence of the lack of publication in Arabic, I do not believe the appropriate relief, by virtue of this flaw per se, is to invalidate the Water Regulations. It would be sufficient to order that when the water extraction levies are updated it shall be mandatory to also publish the invitation to voice arguments in Arabic (this obligation is currently imposed on the Water Council pursuant to Section 116(d) of the Water Law).

 

38.Appellants' matter also relates to their inability to exercise their right to be heard, which was indeed violated in the case before us. This raises the question: How is such violation to be treated? Prima facie, the results of an action that deviates from the scope of reasonableness or that is tainted by illegality, should be null and void. However, it is known that according to the relative voidness doctrine or the relative consequence theory, which have been accepted in our system, one must distinguish between the flaw and the consequence thereof (see: CrimA 1523/05 Anonymous v. The State of Israel (not published, March 2, 2006)). In this matter, it has been said that:

 

"Case law regarding relative voidness (which, for the sake of accuracy, should be referred to as “relative legality”), provides that one must distinguish, in the framework of judicial review of an administrative decision, between two levels: the first level – the flaw in the decision; and the second level – the consequence of the flaw. With respect to the first level, the Court must examine and determine if there was a flaw in the decision such as: ultra vires, violation of the right to be heard, conflict of interests, irrelevant considerations, and the like. If the Court ruled, on the first level, that there was a flaw in the decision, then it must, on the second level, consider the consequence of the flaw, i.e. the appropriate relief. The Court's considerations differ greatly at the two levels: at each level the Court has different objectives and uses different tools" (LCrimA 4398/99 Harel v. The State of Israel, PD 54(3) 637, 643 (2000)).

 

This is the case when dealing with an administrative flaw (see: AAA 3518/02 Rajby v. Chairperson of the Local Planning and Building Committee, Jerusalem, PD 57(1) 196 (2002); HCJ 10455/02 Amir v. Israel Bar Association, PD 57(2) 729 (2003)). This is also the case regarding a void contract to which the administrative authority is a party (see: CA 6705/04 Beit Harechav Ltd. v. Jerusalem Municipality (yet to be published, January 22, 2009)), and is also the case in judicial review of secondary legislation of the legislative authority (see: EA 92/03 Mofaz v. Central Elections Committee Chairman for the Sixteenth Knesset, PD 57(3) 793 (2003)).

 

39.The right to be heard is an important right in Israeli law, and, as mentioned above, is grounded in the rules of natural justice. In the case before us, the Appellants were entitled to voice their arguments, or, at the very least, to an opportunity to voice them, which was not made possible, due to the Minister of Infrastructures’ not complying with his obligation to publish the invitation to voice arguments in Arabic. The violation of the rules of natural justice, including the right to be heard, is deemed ultra vires (see: CA 183/69 Petach Tikva Municipality v. Avraham Tachan of "Amishav" Laboratory, PD 23(2) 398, 404-406 (1969)), and constitutes a cause to invalidate an administrative decision. However, all this is still subject to the relative voidness doctrine. When examining the consequence of the violation of the right to be heard, the considerations are as follows:

 

"… the question is, what is the consequence of the violation of the mandatory hearing. Does the violation revoke the decision ab initio? Not necessarily. […] According to the relative voidness theory, it is appropriate to adapt the consequence of the violation (including the relief granted by the Court) to the circumstances. In each case, the matter is placed at the Court's discretion. The Court may, inter alia, consider: the severity of the violation; whether at hand is a direct or indirect attack of the decision; whether the decision is being attacked by a person directly adversely affected by the decision or by someone else; the timing of the attack on the decision; the damage caused to the person, due to having been denied a prior hearing, the damage that could be caused to the public, were the decision to be invalidated and the chances to cure the wrong by means of a later hearing". (HCJ 2911/94 Backi v. Kalaji – General Manager of the Ministry of Interior PD 48(5) 291, 305-306 (1994)).

 

40.The question, then, is how the flaw in the case at hand should be treated. In my opinion, vacating the Water Regulations, only due to the fact that the Appellants did not have the opportunity to voice their arguments at the time relevant to the promulgation, is unwarranted. Additionally, I find it unwarranted to order the vacating of the notices of debt sent to the Appellants due to the water extraction bills they had to pay pursuant to the extraction licenses in their possession. One can, indeed, find a causal connection between the lack of publication of the invitation to voice arguments in Arabic, and via platforms widespread among the Arab population, and the Appellants not knowing, as emerges from their affidavits, about the amendment of the Water Regulations. However, Appellants did nothing, or at least it was not proven to us that they took any action, related to the notices of debt issued in the Appellants' matters, related to a period spanning over five to six years, concerning these debts, of which they should have been aware. The Appellants did not, during said period, ask the authority about the extent of their debt for water they extracted nor did they demonstrate any effort to discuss the authority's conduct (which they are now criticizing) at the time of the promulgation of the Regulations. Passively waiting until the authority acted to collect the debt, which, in the interim, had accumulated to large amounts, is inappropriate. Furthermore, Appellants chose to attack the lack of publication of the invitation to voice arguments, and the amount they were charged, by means of an indirect attack, notwithstanding the fact that, as mentioned above, the debts accumulated over a number of years. An indirect attack is not the standard course in matters such as these, which serves as an additional consideration supporting my conclusion that neither the Regulations nor the debt notices should be voided.

 

41.I shall further note that I agree with the District Court's rulings regarding the potential impact of the arguments that the Appellants raised before it (and before us) regarding the contents of the Water Regulations and the consequence of the arguments on the wording of the Regulations, had the Appellants been granted the opportunity to voice them before the secondary legislator. The general purpose of Section 116 of the Water Law, which the promulgation of the Water Regulations was meant to realize, is to prescribe the water extraction levies with the goal of incentivizing extractors to make the extraction process more efficient and to conserve the limited resource, in light of the difficulties faced by the Israel water economy. If, and to the extent that, the Appellants have reservations regarding their physical ability to use their allocated extraction quota, these are arguments that relate to the terms and conditions of the water license, which are inappropriate to raise in the framework of determining the extent of the levies. Additionally, the lack of alternative water sources in the vicinity of the aquifers from which the Appellants extract water is irrelevant to the purpose of treating the shortage in the various reservoirs in accordance with their condition, as is reflected from time to time. Similarly, questions regarding the socio-economic condition of the water extractors and consumers are irrelevant in the framework of determining the water levies.

 

42.Thus, in light of the fact that Appellants' arguments, even had they been presented before the Minister of Infrastructures, would probably not have changed the Regulations' wording that became binding; in light of the manner in which Appellants chose to attack the violation of the obligation to conduct a hearing in their matter – by means of an indirect attack; in light of the extensive damage to the public interest and the public funds which would be caused by a invalidating the Regulations; and in light of the associated damage of the cancellation of the Appellants' debt, I have been convinced, based on the relative voidness doctrine, that, despite the flaw of not publishing the invitation to voice arguments in Arabic, it is inappropriate to invalidate the Regulations or the notices of debt in the Appellants' matter.

 

Before Summation

 

43.In the framework of its arguments, Respondent claimed that, contrary to other laws, such as the Planning and Building Law (Section 1A(a)(2)), the Mandatory Tenders Regulations, 5753-1993 (Regulation 15(a)), and the Freedom of Information Regulations (Availability of Environmental Information to the Public), 5769-2009, the legislator did not prescribe anything in Section 116(d) of the Water Law regarding the manner of publication, nor did it include a duty to publish in Arabic. Meaning, it can be understood from its argument that the Respondent wishes to infer from the legislator's silence that it, and, similarly, the Minister of Infrastructures before it, are exempt from the obligation to also publish in Arabic. I cannot accept this argument. As is known, in Adalah too there was no express obligation to include Arabic writing on the municipal signs in the Municipalities Ordinance itself, yet the Court did not deduce from this that there was no duty, since one cannot infer that the legislator's silence in the matter at hand was deliberate, as that inference is not necessary in order to properly realize the purpose of the law (see: BAA 6045/02 Binstock v. Tel Aviv District Committee of the Israel Bar Association, PD 58(2) 1, 5 (2003); HCJ 212/03  Herut – The National Jewish Movement v. Justice Mishael Cheshin, Chairman of the Central Elections Committee for the Sixteenth Knesset, PD 57(1) 750, 758-759 (2003)). As I have ruled above, the balancing of the purposes of Section 116(d), in accordance with the framework outlined by President A. Barak in Adalah, leads to the conclusion that there is also an obligation to publish the invitation to voice arguments in Arabic.

 

44.I shall further wish to note that while the Water Council is currently responsible for updating the water levies pursuant to Section 116, at the time relevant to this appeal, it was the Minister of Infrastructures who was responsible. Therefore, it would have been desirable had the Appellants added the Minister of Infrastructures as a respondent. I have been convinced, however, that we can rule on the matter before us without hearing the minister's position, given that the Respondent chose not to raise claims on this level and itself defended the path taken by the minister at the time of the publication of the invitation to voice arguments.

 

Summary

 

45.The appeal before us raises questions regarding the manner of exercising the discretion granted to the Minister of Infrastructures (which is currently in the hands of the Water Council), whilst fulfilling the duty, as defined in the Section 116(d), to allow arguments to be voiced before promulgating the Water Regulations that determine the extent of the levies for extracting water in Israel. The aforementioned voicing of arguments constitute a type of public hearing, distinguished from a personal hearing on several levels, primarily with regard to the right to be informed and to the extent of informing deemed reasonable. Clearly, the authority must ensure broad exposure of the invitation to voice arguments, in order to enable the majority of the relevant public to exercise their granted right to be heard. This does not mean, however, that in order to reasonably fulfill this duty, the authority must see to it that notification is universal. Equally important to the matter at hand is the question whether there was an obligation, concurrently with the publication in Hebrew in the national press, to also publish the invitation to voice arguments in Arabic and in the Arab press. I have answered this question in the affirmative, following three interpretative theories, two of which focus on the interpretation of Section 82, while the third is based on interpreting the mandatory power and authority grounded in Section 116(d) of the Water Law. Finally, and in light of the unique circumstances of this case, I have reached the conclusion that despite the flaw of refraining from publishing the invitation in Arabic and in the Arab press, and pursuant to the relative voidness doctrine, it is inappropriate to invalidate the Water Regulations or the notices of debt that were sent by virtue thereof.

 

46.Therefore, subject to that which is presented in my opinion, I recommend to my colleagues to deny the appeal.

 

Given the circumstances of the matter, each party shall bear its own expenses.

 

Justice

 

Justice E. Rubinstein:

 

A.I concur with the outcome reached by my colleague Justice Joubran and with the core of his reasoning. My colleague, however, deemed it appropriate to elaborate on the matter of the status of the Arabic language in Israel, in connection with the matter of the publication of the notices pursuant to Section 116 of the Water Law, 5719-1959 (prior to its amendment) in Arabic. My colleague embarked on a principled discussion of this matter, even though Respondent already declared in the court of lower instance (the Court of Water Affairs) that future notices will also be published in Arabic. Respondent’s attorney even reiterated this worthy commitment in the hearing before us, in response to our questions. Yet, since my colleague has discussed the principle, I shall add a few remarks of my own. I shall note at the outset, that in my opinion this is among the matters to which the saying of our sages, spoken by Shammai, "Say little, do much" (Ethics of the Fathers [Pirkei Avot] 1:15) applies, since the more one studies the Arabic language and applies a broad approach to its use, the better; while the more one treads on questions that impinge upon the sensitive sphere of political debate, even when they are presented as legal questions, the more complicated matters get. Fair-mindedness and pragmatic common sense is good counsel for such matters.

 

B.I shall emphasize that, beyond the legal question, I am of the opinion that the study of the Arabic language by the Jewish public in Israel should be promoted. Regrettably, despite extended efforts in the educational system, this remains far from being sufficiently developed. Arabic speakers are a large minority in Israel. The majority of these speakers today do indeed know Hebrew, which is the dominant language in the country, the language of the majority, and the primary official language. Given the fact that native Arabic speakers are a large minority among us, as well as the fact that Israel is surrounded by neighbors who are all Arabic speakers, with some of whom we even have peaceful relations, the knowledge of Arabic among Jews in Israel, except for the older generation of Jews who originated from certain Arab countries, is, in my opinion, far from satisfactory. Not to mention the fact that the Arabic language is a fundamental part of a rich and ancient culture. I shall take the liberty, at this opportunity, to add my voice to those calling for enhancing the study and knowledge of Arabic and the culture related thereto; this could only bring benefit to the relationship between the State of Israel and its domestic minorities as well as with its surrounding neighbors. I shall quote, in this matter, from a speech I gave, while serving as Attorney General, in Tishrei 5760 (October, 1999) at Givat Haviva, which was published in Kiryat Hamishpat A (5761), 17, and in my book Netivei Mimshal Umishpat (5763), 278.:

 

"As is known, the Arabic language has the status of an official language in the State of Israel. However, knowledge and use of Arabic in Israel falls short, both in terms of convenience for Arab citizens, residents, and visitors, and for use by the Jewish public. Incidentally, this would be an appropriate place to mention that in my opinion more should be done in terms of teaching Arabic grammar in schools in Israel. I myself am a graduate of the Middle-Eastern studies department, in its format, which preceded the Six Day War, when peace seemed a far and unreachable goal. At a time when the circle of peace is opening and extending, I would be all the more happy if Arabic was taught more. There is nothing quite like familiarity with the Israeli Arabs that live among us and the surrounding Arab world. That familiarity is lacking. Language is one the best means for familiarity."

 

It was further said (page 281) that "The Ministry of Transportation was instructed to add Arabic inscription to new license plates on Israeli vehicles. This... taking the peace process into consideration and the possibility that vehicles with Israeli plates will be able to travel in the neighbors' territories". It was further said (ibid) that "Including the Arabic language in official publications of the State of Israel is not only in order to grant it its proper standing, but that at times the very use of the language, in and of itself, grants the opportunity to attain equality". This is true also in the matter of the obligation to publish tenders in Arabic: "There is no proper meaning to equality through participation, if there is no language accessibility, inter alia, due to language barriers" (page 282). See also my paper "The State and Israeli Arabs: The Struggle for Equality in the Framework of a Jewish, Democratic and Tormented State" (ibid, 293, published in its essence in Kiryat Hamishpat, C, 107)

 

In my recent capacity as Chairman of the Central Elections Committee for the Nineteenth Knesset, I felt it necessary, inter alia, to give the Arabic language proper standing by including a segment in Arabic in my address to the citizens of Israel in the traditionally broadcasted Central Elections Committee Chairman’s call to participate in the elections.

 

C.Indeed, much of the matter before us addresses, beyond the legal aspects, questions of respecting the minorities among us (see, on this matter, my paper "The Equality of Minorities in a Jewish and Democratic State" Zehuyot 3 (2013) 140, 142-144); I expressed my opinion (page 145) that "The study of Arabic is one area in need of repair. The majority of Israeli Arabs today know Hebrew, because they live with the majority, Jewish society. Among the Jewish population – other than among immigrants of earlier generations who immigrated from Arab countries and whose mother tongue is Arabic – the situation is vastly different. Lack of knowledge of Arabic is most regrettable…" He who respects – is to be respected. I am of the view that the promotion of the Arabic language should be kept as distanced as possible from the political debate concerning the Arab-Israeli conflict, and should be strongly encouraged in practice. The more the focus is on the practical sphere, on promoting studying the language and using it, the better; it must not be perceived by the public as part of a struggle to alter the Jewish and democratic essence of the state, i.e., to remove the Jewish label from the state, so as not to create unnecessary antagonism. This is what common sense demands: proper respect, proper study, proper use – but not, heaven forbid, a tool for harming the State's Jewish, Jewish and democratic identity. In my opinion, the more we remove this matter from the principled struggles and focus on establishing appropriate practical arrangements, the more the effort will bear fruit. "The essence is not study, but deed", as spoken by Rabbi Shimon Ben Gamliel (Ethics of the Fathers [Pirkei Avot] 1:17). Of course, I shall not claim that there is no point in legal deliberation, in appropriate cases, as demonstrated by those petitions that were accepted. However, in my opinion, ultimately, legal rulings are most appropriate when a worthy request, which, with a little bit of goodwill, could have been met, is not satisfied.

 

D.As mentioned, too much talk can often be counter-productive. I shall illustrate this from the highly-informative book by historian Dr. Nathan Efrati, Hebrew and the State – Hebrew's Public Status since the Establishment of the State (5770 - 2010), which extensively reviews the evolution of both the parliamentary and public discussion, related to the issue of the Hebrew language and its status, and consequently, to the issue of the Arabic language, going back to the establishment of the state. A summary of the remarks with respect to Arabic are presented below in order to draw attention to the inherent sensitivity of the matter. The author mentions (on page 9), that in the United Nations resolution of the 29th of November, 1947 (the Partition Resolution), it was stated with respect to Arabic that "In the Jewish State adequate facilities shall be given to Arab-speaking citizens for the use of their language, either orally or in writing, in the legislature, before the Courts and in the administration". When the matter of the Arabic language was raised in the People's Council, by Meir Grabovski (Argov), a signer of the Declaration of Independence and eventually a member of Knesset, in an argument regarding the wording of the Declaration of Independence and assuming equal rights to both languages in Israel, David Ben-Gurion replied that "No-one will object to there also being freedom of language", however "the language of the state is Hebrew. This does not prevent other residents from using their language anywhere" (pages 9-10); Eventually, Section 15(b) of the Administration of Rule and Justice Ordinance, 5708-1948, was adopted, which repealed the requirement to use English – but did not change the status of Arabic (see also the notes at ibid, page 10). See also ibid, pages 36, 127-128, 131-134 regarding various bills proposed over the years regarding the Arabic language and its relation with Hebrew. The author summarizes the failed attempts for special legislation regarding the status of Hebrew (page 134) "The bills always failed due to the implications of such legislation on the status of the Arabic language"; this occurred, for example, in the discussions of a private bill regarding Hebrew by MK Ora Namir in 1982, "despite the fact that Namir explicitly provided that the law was intended to protect the Hebrew language without in any way derogating from the existing status of the Arabic language" (ibid, page 230). Similarly, see page 243 with respect to the position of both left and right wing governments and the great sensitivity they demonstrated in this matter. On a personal note, I shall mention that the author discusses (page 230-231) remarks of mine from a meeting of the Education and Culture Committee (dated 23^rd of Cheshvan, 5743 - November 9, 1982), in a discussion regarding MK Namir's bill, when I served as legal counsel of the Ministry of Foreign Affairs (page 230-231), "On behalf of the Ministry of Foreign Affairs, [he] praised Namir for the third section of her bill that provided that the rights of the Arabs shall not be prejudiced, as stated in Section 82 of the Palestine Order-in-Council, of 1922, i.e. the status of the Arabic language shall be preserved. He expressed his hope that this law would be publicized so that this fact shall also become known abroad, and not be interpreted as an offensive change". For a review of Supreme Court rulings on the matter, see ibid 231-232. The author further mentions that, when faced with private bills regarding the Hebrew language, which frequently declared that they do not intend to prejudice the Arabic language, the government's position was to consistently oppose any change in the status of the Arabic language (ibid, page 236); and inter alia, ministers also expressed the spirit of this position; while, as opposed to them, "No appeal was heard from the Arab members of Knesset with respect to the preferred status of the Hebrew language in the State of Israel" (page 236), and MK Raleb Majadele, the Minister of Culture and Sport, when submitting a bill to establish an Academy for the Arabic Language (Knesset Education and Culture Committee Hearing, February 19, 2007; ibid page 236), spoke of enhancing Arabic’s prestige as the "second official language".

 

The result is that the attempt to formally anchor the status of Hebrew in a law, beyond that which exists in Section 82, did not succeed, due to the sensitivity of the Arabic issue. On the other hand, the author reviews "Adalah"'s efforts to, in his words, "undermine the preferred status of the Hebrew language", and challenge the Jewish character of the State – as appears in a document of constitutional nature published on its behalf in 2007, (pages 246-247), while defining Israel as a "democratic bilingual and multi-cultural state, as opposed to its current definition as a Jewish and democratic state"; see also footnotes on page 246.

 

E.Furthermore, it is known that the legal status of the Arabic language is complex, as demonstrated by the case law presented by my colleague Justice Joubran. It is clear that, on the one hand, the Hebrew language is in fact the main language of the State, a Jewish state, as per the Declaration of Independence, and democratic in its essence, and a Jewish and democratic state, as per its definition in the Basic Law: Human Dignity and Liberty and in the Basic Law: Freedom of Occupation. That an overwhelming majority of this country’s citizens are Jewish, and that the various governmental institutions conduct themselves first and foremost in Hebrew are well known facts that do not require evidence. It is undisputable that the revival of the Hebrew language, from Eliezer Ben Yehuda and his friends and onwards – a revival, which, without resorting to excess mysticism, can be deemed miraculous – and the unimaginable success of transforming Hebrew from a sacred tongue to a living language, spoken by the multitudes of immigrants and ingathered exiles, is an enormous part, of the Jewish national revival in Israel, and whose importance cannot be overstated. As Ephraim Kishon said ("This is the Country", in The Knitted Kipa and Some More Pro-Israel Satires (5753 – 1993) 5) "This is a country where a mother learns the mother tongue from her children". Having said that, the Arabic language has legal status as an official language by virtue of Section 82 of the Palestine Order-in-Council, 1922; see Y. Zamir The Administrative Authority (2010) (2^nd Edition) on page 66, where Arabic is described, in the framework of the rights of the Arab public, as a "second official language". It is not superfluous to note that a few years back the Knesset adopted the Law for the Supreme Institute for the Arabic Language, 5767-2007, the drafting of which parallels the language of the Law for the Supreme Institute for the Hebrew Language, 5713-1953 (the law that establishes the Academy of the Hebrew Language); see also Efrati, ibid, 233. "In the Supreme Institute for the Arabic Language Law, the institute was charged, inter alia, with 'Research of the eras and branches of the Arabic language' (Section 391), and with 'Conducting relations and exchange of information with the Hebrew Language Academy and with Arabic and Hebrew research institutions in Israel and around the world." (Section 3(5)).

 

Over the years, the legal issue has been discussed in the case law, in scholarly publications and in the opinion pages of the press. As far back as 1967, Advocate (and eventually Judge) Avigdor Salton published his article "The Official Languages in Israel" (Hapraklit 22 (5727 - 1967) 387), in which he reviewed the then current legal status of the Arabic language (page 391 and onwards), concluding on page 397 with the opinion that "legally speaking, there is no duty for government ministries or courts to respond in Arabic", and that is rather " only a license" (emphases original) granted to the authorities, subject to preventing a miscarriage of justice; see page 395. Furthermore, "As for the question of the official languages in Israel, in general, it appears to me that in this field more is concealed than in revealed, and the Knesset should address this important question" (p. 397). The matter arose later on in HCJ 527/74 Khalef v. The District Planning and Building Committee, Northern District, PD 29(2) 319 (1975) in a matter similar to the case at hand, and there was no dispute that a plan that was deposited should have also been published in Arabic, as per Section 89(a) of the Planning and Building Law, 5725-1965 (as was amended in 5733 - 1973).

 

F.In LCA 12/99 Jamal v. Sabek (1999), Justice (as was his title at the time) M. Cheshin noted (paragraph 18), regarding the right to vote and the use of Arabic, that Arabic has – in the provision of Section 82 of the Palestine Order in Council – an "especially exalted status, and there are even those who believe that it is an official language (whatever the interpretation of the term "official" may be) … the main point being that the Arabic language is the language of a fifth of the State's population – the language of the public, language of the culture, language of the religion, and that this portion of the population is a significant minority whom, and whose language, we must respect"; see also CA 8837/05 Marshud v. Shorty (2009) (paragraph 21). The matter was extensively addressed in HCJ 4112/99 Adalah v. The Tel Aviv - Jaffa Municipality, PD 56(5) 393 (2002). My colleague reviewed the three opinions that were presented therein regarding signs in mixed cities where the Petitioner requested that it be applied universally. My position there as the Attorney General was, as President Barak summarized (paragraph 3 on page 405):

 

"In a notice on his behalf (on behalf of the Attorney General – E.R.) it was noted that in his opinion the respondent municipalities do not have an obligation to post signs in Arabic. Such an obligation does not stem from Section 82 of the Palestine Order-in-Council, 1922. Arabic, however, is an official language of a large and respected minority in the State. This status that it has - alongside the Hebrew language, which has a primary status - creates an obligation that the governmental authorities consider the use of the Arabic language in accordance with the matter in question. In terms of the respondent municipalities, it follows that certain criteria are expected of them when exercising their discretion in those cities in which there is a significant Arab minority. First of all, a distinction can be drawn between main arteries and side streets. The obligation to also post signs in Arabic applies primarily to signs on the main streets and central roads. Secondly, the obligation to post signs in Arabic applies mainly in areas in which there is a large Arabic-speaking population. Thirdly, signs directing to public institutions, as well as directional signs within the public institutions themselves must also be in Arabic. Fourthly, updating the signs in all such places where adding Arabic writing shall be required, shall be made within a reasonable time frame. The Attorney General added that consideration must be given to the general interest of readers' comprehension, i.e., the public interest that everyone understand the signs. The main importance of this interest is readers' comprehension of safety and warning signs. It is of lesser importance in other signs (directing signs, including road and roundabout signs and signs in public squares, as well as other public signs). The Attorney General added that some of the Arab public is able to read and understand Hebrew and English signage".

 

Further on (in paragraph 6 on pages 406-407) the President quoted from my complementary position that in the case of localities with a significant Arab minority "practical considerations, as well as considerations of respecting the language of the Arab public, could justify expanding the scope of the signs in Arabic beyond the main streets and central roads, and beyond those areas in the local authority’s jurisdiction which include a large Arabic-speaking population", with the details being determined by the local authorities.

 

The majority opinion, with President Barak and Justice Dorner applying different normative interpretations, was that it is appropriate for an obligation of Arabic writing to be applied in its entirety. President Barak did not see this through the prism of Section 82, although he was of the opinion (paragraph 13 on page 411) that consideration should be given to the official status of the language, and therefore viewed the source to be in the mere authority to post municipal signs in the language of the largest minority in Israel (paragraph 25 on pages 417-418). Justice Dorner was of the opinion that the matters derive from Section 82, since (paragraph 7 on page 478) "…while Hebrew is the primary official language of the State of Israel, being the national language of the majority, the Arabic language’s status as an official language pursuant to the amended Section 82, is meant to realize the Arab minority’s freedom of language, religion and culture …", in accordance with the principle of equality. Justice (as was his title at the time) Cheshin (paragraph 16 on page 429) emphasized that the fact that the Arabic language is referred to as "official" "grants the language an exalted status, but one should not infer an operative legal conclusion from such status other than in circumstances in which this is required and in subordination to the law. The material is sensitive and delicate, … and therefore we must be guarded: we shall be cautious and refrain from reaching operative legal conclusions from the fact that the language is "official", unless this is required in consequence of applying another fundamental principle of law…" Freedom of language – yes, but without being dragged into politics. Justice Cheshin added (paragraph 61 on page 460) that "The real matter of the petition before us is not the street signs of the respondent municipalities. The matter – in its essence: from its beginning through to its end, is the cultural and national rights of the Arabs in Israel… The matter of granting these - or such - rights - is, first and foremost, a political one, which, in any event, is to be decided upon by the political authorities. The question is delicate and complicated, with far-reaching implications for both the image and character of Israel as a Jewish and democratic state…".

 

G.See also I. Saban "The Collective Rights of the Arab-Palestinian Minority, Do They or Do They Not Exist and the Extent of the Taboo" Iyunei Mishpat 26(1) (2003) 241, 260 and onwards, regarding Arabic's status and for a critical overtone regarding the matter of the practical realization of the language's official status; I. Saban "A Sole (Bilingual) Voice in the Dark", following HCJ 4112/99 Adalah v. The Tel-Aviv Municipality" Iyunei Mishpat 27(1) (2003) 109, and particularly 130-133; I. Saban and M. Amara "The Status of Arabic in Israel: Law, Reality and Borders: Using the Law to Change Reality", Medina Vechevra 4 (5765 - 2004) 885; A. Hacohen "Multiplicity of Opinions and a Human's Right to Speak his Language" Parashat Hashavua Bereshit 32 (5772); A. Harel-Shalev "The Status of the Arabic Language in Israel - Comparative Perspective" Adalah's Electronic Newsletter 14 (2005); Alaa Mahajna "The Arabic Language and its Indigenous Status in Israel" Adalah (2008); Dr. A. Bakshi "The Status of Arabic in the State of Israel,” The Zionist Strategy Institute (5772-2011). This collection of articles, reflecting different legal, public, and political directions, indicates the sensitivity, not to mention the volatility, of the matter, and the conflicts therein. In any event, more than a few of the authors emphasize the practical aspect, the gap between the legal analysis and the facts on the ground. There is no dispute, including among those of the opinion that the status of an official language should be reserved exclusively for Hebrew, that "also as a matter of values, one must protect the linguistic autonomy of the Arab minority and its rights of freedom of expression and linguistic accessibility to government services" (Bakshi, ibid 36). I have not addressed the various proposals for enacting a constitution in Israel and the references therein to the matter of language; that matter lies outside the purview of this case. Therefore, prima facie, as opposed to the sharpened legal and political disputes, in all that relates to the practical level, the gap is not really that wide.

 

H.I shall return to my opening remarks. The essence is not study, but deed, and, with it, common sense. There is a proper place for legal disputations and from every possible angle. They are part of the dialog, and at times the debate, in the political, public, academic and legal arena, which probably will not end in the near future. Perhaps we will see this debate concluded if the State of Israel completes its constitutional project, a goal to which I personally aspire. In the meantime, however, my advice, as stated above, is “say little and do much”, both in terms of studying the Arabic language and in terms of using it, out of respect towards the minorities among us. This does not prejudice the Hebrew language or Israel's essence as a Jewish and democratic state. On the contrary, in the very honor it bestows upon its minorities, the majority society shall gain honor for itself.

 

Justice

 

Justice N. Hendel:

 

I concur with my colleague Justice S. Joubran's extensive and thought provoking judgment and with Justice E. Rubinstein's important remarks.

 

 

Justice

 

 

Now, therefore, it was ruled as per Justice S. Joubran's judgment.

 

Given today, the 5^th of Cheshvan, 5774 (October 9, 2013)

 

 

Justice                                     Justice                                     Justice

 

 

President A. Barak

In March 1992, the Knesset enacted Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Liberty. The enactment of these two Basic Laws effected a substantive change in the status of human rights under Israeli law. Such rights became constitutionally protected and were accorded supra-legislative constitutional status. They cannot be changed by ‘regular’ legislation. A regular law cannot infringe a protected human right unless the constitutional requirements set forth in the Basic Law have been met. The failure of a regular law to meet those requirements renders it unconstitutional. Such a law is constitutionally flawed and the Court may declare it void.

 

Israel is a constitutional democracy. We have now joined the community of democratic countries (among them the United States, Canada, Germany, Italy and South Africa) with constitutional bills of rights. We have become part of the human rights revolution that characterizes the second half of the twentieth century. The lessons of the Second World War, and at their center the Holocaust of the Jewish people, as well as the suppression of human rights in totalitarian states, have raised the issue of human rights to the top of the world agenda. International accords on human rights have been reached. Israel has acceded to them. International tribunals have been established to address issues of human rights. The new constitutions include extensive sections treating of human rights – particularly at the head of those constitutions and in their unique entrenchment provisions. Judicial review of the constitutionality of laws infringing human rights has become the norm in most countries. This revolution has not passed us by. We joined it in March 1992.

 

A. The constitutional revolution in human rights

 

1. The constitutional revolution occurred in the Knesset in March 1992. The Knesset endowed the State of Israel with a constitutional bill of rights. This revolution was many years in the making and was the result of a multi-dimensional legislative process. At its foundation rests the recognition that the Knesset is the body that has the authority to enact a constitution for Israel. The Knesset is not only empowered to adopt ‘regular’ legislation; it is also empowered to adopt a constitution. The Knesset exercised this authority in enacting two Basic Laws on human rights. In so doing it created a supreme, supra-legislative constitutional norm. In the normative hierarchy that was thereby created, the two Basic Laws treating of human rights stand above regular legislation. A conflict between a provision of one of these two Basic Laws and a provision of a regular statute leads to the invalidation of the offending statute.

 

2. When it enacted the Basic Laws pertaining to human rights, the Knesset expressed its position with regard to the supreme legal-constitutional status of those laws. Today the Supreme Court expresses its legal position confirming that supreme status. Thus the legislative branch is in accordance with the judicial branch. The constituent authority coincides with the judicial authority. An order has been established regarding the constitution in general and regarding the human rights set forth in the Basic Laws in particular. The Knesset did not create the Basic Laws ex nihilo. Rather, the Knesset enacted the two Basic Laws in accordance with its constituent authority. This authority is granted to the Knesset, as is evident against the background of the Declaration of Independence, the establishment of the Constituent Assembly, the Harrari Decision, and the ten Basic Laws that the Knesset has enacted from 1958 until the enactment of the Basic Laws dealing with human rights (Basic Law: The Knesset; Basic Law: Israel Lands; Basic Law: The President of the State; Basic Law: The Government (old and new); Basic Law: The State Economy; Basic Law: The Army; Basic Law: Jerusalem Capital of Israel; Basic Law: The Judiciary ; Basic Law: The State Comptroller). The Supreme Court did not create something ex nihilo. Our decision today is consistent with established precedent, beginning with the Bergman case (HCJ 98/69 Bergman v. Minister of Finance [15]). As recently as last year, we recognized the Knesset’s authority in this regard (see HCJ 726/94 Clal Insurance Co. Ltd v. Minister of Finance [37]). Today we continue on the same path.

 

3. The constitutional revolution in the field of human rights is built upon the foundation of judicial precedent. The Knesset has used its constituent authority to endow a number of legally protected human rights with constitutional supra-legislative status. Without the established legal underpinning, the constitutional change could not have been effected. ‘We would not have arrived at the secure position that human rights occupy today without the strong foundation established by the judges who preceded us’ (CrimApp 537/95 Ganimat v. State of Israel [38], at p. 414). It would not have been possible to construct a constitutional framework in the area of human rights had not the established judicial precedent been in place. Without judicially protected human rights, constitutionally protected human rights would be unknown to us. Without Israel’s democratic past there is no basis for Israeli constitutional democracy in the present or the future. The constitutional revolution in the area of human rights is the product of the jurisprudential developments in the protection of human rights. This constitutional structure is built upon a foundation of legal precedent. In this way, clear expression is given to the ‘ongoing cooperation’ between the Court and the Knesset (Justice Agranat, The Contribution of the Judiciary to the Legislative Enterprise, 10 Tel-Aviv University Law Review (Iyyunei Mishpat) (1984) 233). Moreover, the new constitutional law must be interpreted against the backdrop of the general national experience. Constitutionally protected human rights must be understood in the context of established judicial precedent. This precedent does not diminish in power. It continues to be a source of interpretive insight in construing constitutionally protected human rights.

 

4. The constitutional revolution is not manifested by the simple recognition of human rights. This recognition has long been established in Israeli judicial precedent. Rather, the constitutional revolution is seen in the changed constitutional status of human rights; the constitutional revolution is seen in the establishment of constitutional status for ‘basic principles’ according to which ‘fundamental human rights in Israel are founded upon a recognition of the value of the human being, the sanctity of human life and the principle that all persons are free...’ The constitutional revolution is expressed in the determination that human rights ‘will be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel’ (s. 1 of the Basic Law: Human Dignity and Liberty; s. 1 of the Basic Law: Freedom of Occupation). The constitutional revolution is expressed in the granting of constitutional status to the clause that a person’s honor and freedom must be protected ‘in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state’ (s. 1A of the Basic Law: Human Dignity and Liberty; see also s. 2 of the Basic Law: Freedom of Occupation). Accordingly, the legal rights of a person in Israel are no longer unwritten (Justice Landau in HCJ 243/62 Israel Broadcasting Studios Ltd v. Gary [39] at p. 2415). They have become constitutional rights, engraved upon the pages of the constitution and enjoying normative supremacy. A regular law that infringes a constitutional right in a manner that is inconsistent with the values of the State of Israel as a Jewish and democratic state, that does not serve a proper purpose, and that violates the right to an extent greater than is required is an unconstitutional law and may be declared void. When a regular law infringes a constitutional right protected in the Basic Law: Human Dignity and Liberty, does not meet the requirements of the limitation clause and provides – expressly or implicitly – that it is intended to infringe a human right, such a law is unconstitutional and the Court may declare it void. This is the essence of the constitutional change. This is unprecedented. Until now the prevailing view in Israel was that ‘the all-powerful legislature may permit harm to citizens without any legal or judicial limits.’ (Justice Sussmann in HCJ 163/57 Lubin v. Tel-Aviv-Jaffa Municipality [40], at p. 1079; ‘This is the decree of the legislature; if it leads to discrimination, such discrimination is sanctioned by legislation and is therefore lawful and not invalid’ (Justice H.H. Cohn in HCJ 120/73 Tobis v. State of Israel [41], at p. 359). Justice Berinson has summarized this as follows:

 

It is beyond doubt that according to the prevailing constitutional rule of the State, the Knesset reigns supreme and it is within its power to enact any law and fill it with content at its whim. One may not consider the possibility that the clauses of a legally enacted law might be declared invalid for one reason or another. (HCJ 228/63 Azuz v. Ezer [18], at p. 2547).

 

This constitutional outlook has now changed. The Knesset is no longer all-powerful in exercising its legislative authority. In the area of human rights, the Knesset has limited its legislative powers by exercising its constituent authority. This is the basic constitutional change. For the first time, in March 1992, the Knesset established a range of constitutional human rights that limit the legislative power of the Knesset and that condition their infringement upon the realization of the values of the State of Israel as a Jewish and democratic state. For the first time the Supreme Court affirms the constitutional supra-legislative effect of the Knesset’s action. In light of the novelty of this issue, because of the different opinions on this matter and against the background of the comprehensive decision of my colleague President Shamgar, it is fitting that I address various questions that arose before us in an attempt to answer them.

 

In the first part of this decision I discuss the constitutional framework. In this section, I address the question of whether the Knesset is authorized to enact a constitution for Israel. I will answer this question in the affirmative, for the Knesset has not only legislative power, but also the power to enact a constitution for Israel; in other words, it is endowed with constituent authority. In the context of this section I address the question of how the Knesset makes use of its constituent authority and whether, in fact, it did so properly in enacting the two Basic Laws treating of human rights. I answer this question affirmatively as well. I examine the normative status of the two Basic laws and their relation to regular legislation. I then conclude the examination of the legislative framework with the question of whether, in light of the two Basic Laws, judicial review can lie of the constitutionality of regular legislation. The answer to this question is also affirmative.

 

In the second section I concentrate on the Basic Law: Human Dignity and Liberty. I begin with an examination of its constitutional implications. I briefly discuss the scope of the protected rights, and will concentrate primarily on the nature of the right of property, which the Appellants claim has been violated. I consider the Knesset’s power to infringe protected rights by analyzing the limitation clause.

 

In the third and final section of my decision I consider whether the provisions of the Family Agricultural Sector (Arrangements) (Amendment) Law infringe constitutionally protected rights. I answer this question in the affirmative. Against this background I consider whether the law, which infringes those rights, meets the requirements of the limitation clause. I answer this question affirmatively, as well.

 

B. The constitutional framework

 

I) The source of the Knesset’s authority to enact a constitution for Israel

 

a) The doctrine of constituent authority

 

5. The opening question is, of course, whether the Knesset is endowed with the authority to enact a constitution for Israel (‘constituent authority’) and, if so, what is the source of this authority. President Shamgar has proposed several views on this matter. Choosing between them is not necessary in order to decide the issue before us in this appeal. I will therefore present my opinion in this matter.

 

It seems to me that that most appropriate view is that the Knesset is endowed with constituent authority. This power derives from the central constitutional fact that Knesset was given the authority to enact a constitution for Israel. The Knesset does not create this authority for itself. It is not granted to the Knesset by a Basic Law or by any other law enacted by the Knesset. In order to frame a constitution, which will be placed above the law in the normative hierarchy, there must be an Archimedean foothold located outside the constitution or the law, which provides the Knesset with the authority to adopt a constitution. The constitution cannot create the authority by which it will be created. Statute cannot create a constitution to which statutes will be subject. Nor can legislation create the authority by which it will be created. The enactment of a constitution always requires a foothold outside the legislative body. This foothold must come from the people, whose will is supreme. Thus, the doctrine of the Knesset’s constituent authority is based upon the principle that this authority derives from the sovereign, i.e. the people. Constituent authority endows the Knesset with the power to enact a constitution for Israel (as embodied in the Basic Laws). This authority endows the Knesset with the power to enact regular laws as well as to act in other ways (for example, to supervise the government). Indeed, the Knesset wears a number of ‘hats’ or ‘crowns,’ among them the crown of constituent authority – under which the constitution is adopted (by enactment of the Basic Laws) –  and the crown of legislative authority,   under which legislation is adopted. Three legal models may illustrate this view. Each model stands alone as a basis for the doctrine of constituent authority. That all lead to the same conclusion lends that conclusion greater weight. I will begin with a brief introduction to each of the three models. I will then present the constitutional facts that sustain the models.

 

b) Presentation of the three models

(i) Constituent authority is derived from the basic norm

 

6. The first model is based upon the importance of constitutional continuity. Under this model, the basic norm for Israel (the Grundnorm, according to Kelsen, see H. Kelsen, Pure Theory of Law (Knight trans. 1967), at p. 193) is that the Provisional Council of State is the supreme authority of the State of Israel (see I.H. Klinghoffer, “The Establishment of the State of Israel: Constitutional History,” Klinghoffer Book on Public Law, (ed. I. Zamir, 1993), at p. 74). The Provisional Council of State declared in the Declaration of Independence that a constitution would be drawn up ‘by the elected Constituent Assembly’ In addition, the Provisional Council of State declared itself the legislative body (in the Law and Administration Ordinance, 5708-1948).

 

The Constituent Assembly was elected (on January 25, 1949), and with its establishment the Provisional Council of State was dissolved. Its powers passed to the Constituent Assembly (Transition Law, 5709-1949). The Constituent Assembly therefore had two main powers: constituent authority and legislative authority. The same entity was given two functions, two ‘crowns’ or ‘hats’ as it were: one constituent (to adopt a constitution), and the other legislative (to enact ‘regular’ legislation). This arrangement, in which constituent and legislative authority are granted to the same entity, is widely accepted (see Akzin, The Doctrine of Governments, vol. 2  (1966), at p. 35; Klein, ‘Constituent Authority in the State of Israel,’ II Hebrew Univ. L. Rev. (Mishpatim) 52 (1970)). The Constituent Assembly provided (in the Transition Law) that ‘the legislature of the State of Israel will be known as the “Knesset.” The Constituent Assembly will be known as the “First Knesset.” The delegates will be known as “Members of Knesset.”’
(s. 1). The First Knesset (i.e. the Constituent Assembly) devoted considerable time to debating the matter of the constitution. These debates concluded with a compromise decision (the “Harrari Decision”), according to which:

The First Knesset charges the Constitution, Law and Justice Committee with the preparation of a proposed constitution for the State. The constitution will be composed of chapters, with each chapter comprising a Basic Law unto itself. The chapters will be brought before the Knesset if and when the Committee completes its work and all the chapters together will constitute the Constitution for the State’ (Knesset Proceedings, vol. 5, at p. 1743).

 

Before it dispersed, the First Knesset provided that all of its powers would pass to subsequent Knessets (Second Knesset (Transition) Law, 5711-1951). To avoid doubt, it was emphasized that this transfer would also include all powers of the Constituent Assembly (see s. 9). The Second Knesset dealt with the preparation of Basic Law: The Knesset but did not succeed in adopting that law. Only the Third Knesset succeeded in adopting the first Basic Law: Basic Law: The Knesset. Since then, Basic Laws have been enacted by the various Knessets. From this brief survey, the first model concludes that the constituent authority of the Constituent Assembly has rested continuously in the hands of the Knesset.

 

(ii) Constituent authority is derived from the rule of recognition

7. The second model supporting the Knesset’s constituent authority is not based upon constitutional continuity. Rather, this model examines the constitutional structure as it exists at any given time. It is based upon the thesis of Professor Hart. Professor Hart distinguishes between primary and secondary norms. Secondary norms determine how the primary norms are created, how they may be changed and how disputes concerning them may be resolved. Among the secondary norms the “rule of recognition” occupies a preeminent position (see H. L. A. Hart, The Concept of Law (second edition, 1994), at p. 100). This rule determines how primary norms are created as well as their relative status – which is a superior norm and which is subordinate. The rule of recognition is determined by the Court, which does not make this determination at its own whim. Rather, it reflects the views of the community as to the way in which norms (including constitutional norms) are created. Under this model, one may determine that the rule of recognition of the State of Israel is that the Knesset is endowed with both constituent and legislative authority. This determination does not reflect a subjective judicial position. It reflects an objective position as to the “system of national life” of the State of Israel (Justice Agranat in HCJ 87/53 Kol HaAm Co. Ltd v. Minister of Interior [4], at p. 884). The basic understanding of today’s Israeli community – expressing our entire national experience – is our national consciousness that the Knesset is the body authorized to enact a constitution for Israel. This consciousness originated before the establishment of the State, and in the preparations for the framing of a constitution. This consciousness was crystallized in the Declaration of Independence. It took on real form in the elections for the Constituent Assembly. It was consolidated in the socio-legal understanding that the Knesset is endowed with constituent authority. It became part of our political culture. Based on these factors the Justices of the Supreme Court determine today that according to the rule of recognition of the State of Israel, the Knesset was given constituent and legislative authority; that the Knesset is authorized, in using its constituent authority, to limit its regular legislative authority; and that the constituent acts of the Knesset stand above its legislative acts. The historic journey – upon which the first model is based – is an important factor in the second model as well. Constitutionality and the constitution are not merely formal instruments. They are not mere law. They are the product of the national experience, of society, education and culture. They reflect the national experience. Our national experience, in today’s comprehensive view, leads to the conclusion that the Knesset has the authority to enact the constitution.

 

(iii) Constituent authority is the best interpretation of social and legal history

 

8. The third model for the constituent authority of the Knesset is also an empirical model. It seeks the best interpretation of the entire social and legal history of a given system at a given time. This is Professor Dworkin’s model (see R. Dworkin, Law’s Empire, (Cambridge, 1986); R. Dworkin, A Bill of Rights for Britain (London, 1990)). Under this model one may conclude that a given body (such as the parliament) is empowered to enact the constitution for a country if that conclusion is the best interpretation of the body of social and legal history of that country. In applying this model to Israel, it appears that the interpretation that best fits the entirety of Israel’s social and legal history since its establishment is that the Knesset is empowered to enact a constitution for Israel. This conclusion is based upon the same factors as those underlying the first and second models. Thus the best interpretation of our constitutional history is not that the Knesset wasted its time by spending over forty years preparing a constitution; the best interpretation of our constitutional history is not that some of the entrenched provisions of the Basic Laws are unenforceable; the best interpretation of our constitutional history is not that the various judicial decisions dealing with the Basic Laws miss their mark. On the contrary: in interpreting our legal and social history, its ways and its traditions, as that history presents itself today – against the background of the Declaration of Independence, the establishment of the Constituent Assembly, the Harrari Decision, the election campaigns in which the stated goal of the parties was the adoption of a constitution, the enactment of twelve Basic Laws that include entrenchment and limitation clauses, judicial precedent and the reaction of the Knesset thereto, and the position of the legal community – the inescapable conclusion is  that the most fitting interpretation of our history is that the Knesset is endowed with constituent authority. This is the most fitting explanation for the Knesset’s power to establish that a Basic Law may only be changed by another Basic Law, that the regime anchored in a Basic Law may be amended only by a law passed by a specified majority (a majority of the Members of Knesset or other greater majority) or by a law that meets substantive requirements, that the Knesset is empowered with constituent authority such that it may create a constitutional norm that limits the ways in which it may be changed and entrenches itself against regular legislation. Indeed, the most fitting interpretation of the entirety of the socio-legal history of the State of Israel is that deeply ingrained in the social and legal consciousness of the Israeli community is the perception that the Knesset is empowered to adopt a constitution for Israel. This is part of our political culture. This is the most fitting interpretation of our social and legal history from the establishment of the State until today.

 

c) The constitutional data underlying the three models

(i) Survey of the constitutional data

 

9. The three models do not derive from the judge’s subjective perception. They do not arise from his personal desire to recognize or refuse to recognize a constitution for Israel. They are the result of an objective analysis of the constitutional history of the State of Israel. They result from the constitutional recognition of the Israeli community against the background of our short legal history. They result from an understanding of the social facts upon which the Israeli system is built. These are the constitutional facts from which the three models derive, each from its own perspective. I will now present these factors. I open with those factors that evidence constitutional continuity (paragraphs 10-18). These factors are particularly important in the context of the first model, which sees constituent authority as derived from the basic norm. Of course they serve the other two models as well. I then move to the Knesset’s perception of itself (paragraphs 19-31). This is also an empirical factor that provides the basis for the Court’s conclusion according to each of the three models. From there I will focus on the understanding of scholars and commentators (paragraphs 32-34). This factor is an important one, for it presents the view of the Israeli legal community as to the Knesset’s authority to enact a constitution for Israel. This is important in all three models, particularly the second and third. Finally I will discuss the judicial caselaw of the Supreme Court (paragraphs 35-37). Two Supreme Court decisions have adopted the doctrine of constituent authority in its entirety. In the context of these constitutional factors, I will discuss the body of judicial precedent, which implicitly recognizes the normative supremacy of the Basic Laws. I will complete this analysis with a number of conclusions that are common to all three models and which arise from this objective data.

 

(ii) Constitutional continuity

 

10. May 15, 1948 is the point of departure for the view that the Knesset has constituent authority. On that day the State of Israel was established. The basic norm of the State – its superior norm, which is not itself part of the body of positive law, but provides a basis for the other legal norms of the state – is that the Provisional Council of State is the supreme legislative institution of the State (see Stemberg, “The Basic Norm of the Law In Israel,” 9 HaPraklit (1952) 129. Professor Klinghoffer suggested this in stating that:

 

In order to claim constitutional continuity in Israel’s present legal system, one may look at how authority was transmitted in the past. The Declaration of Independence does not refer to the powers of the Provisional Council of State until the statement in which the National Council declares itself the Provisional Council of State. There is, however, no doubt that the Provisional Council of State was seen as the supreme authority of the new state. The absence of any statement of its powers is evidence that those powers were not intended to be limited. From this we may conclude that the basic norm of the State of Israel can be found in this statement, which transforms the National Council into the Provisional Council of State’ (Klinghoffer, ibid., at p. 74).

In a similar vein, Professor Rubinstein states:

 

The Council’s authority to delegate to itself this power in the Declaration is without precedent. This is the beginning of the process of original creation that characterizes the inauguration of a new governmental regime which does not derive its existence from any previous or other regime’ (A. Rubinstein, The Constitutional Law of the State of Israel, (expanded fourth ed., vol. 1 (1991)), at p. 42).

 

The Provisional Council of State decreed in the Declaration of Independence that a constitution would be enacted by the Constituent Assembly, which in turn would be elected no later than October 1, 1948. It thus gave expression to the Resolution of the General Assembly of the United Nations of 28 November 1947, according to which ‘the constituent assembly of each State will enact a democratic constitution for its respective State.’ As stated in Israel’s Declaration of Independence:

 

We hereby declare that as of the termination of the Mandate at midnight, this night of the 14th and 15th May, 1948, and until the setting up of the duly elected bodies of the State in accordance with a Constitution, to be drawn up by a Constituent Assembly not later than the first day of October, 1948, the present National Council shall act as the provisional administration, and shall constitute the Provisional Government of the Jewish State, which shall be known as “Israel.”

 

The Provisional Council of State published the proclamation and enacted the Law and Administration Ordinance, 5708-1948. This statute provided, inter alia, that ‘the Provisional Council of State is the legislative authority’ (s. 7(a)). The Provisional Council of State similarly enacted the Constituent Assembly Elections Ordinance. In the course of its activity, it appointed a special committee on the constitution headed by Mr Z. Warhaftig. ‘The committee’s function was to collect, clarify and organize proposals and material and to prepare a draft constitution that would be submitted with comments and criticism by the minority of the committee for the use of the Constituent Assembly’ (Rubinstein, ibid., at p. 44). Indeed, the accepted view then was that the Assembly would prepare and draft a constitution for Israel. The Supreme Court expressed this view in the Al-Carbotelli case [42], in the context of a review of existing precedent as to the status of the Declaration of Independence (HCJ 10/48 Ziv v. Acting District Commissioner of Tel-Aviv [43], at p. 85). It stated that ‘the Court did not accept the claim that the Declaration of Independence is a constitution, against which the validity of legislation will be measured until the Constituent Assembly enacts a constitution as provided in the Declaration’ (HCJ 7/48 Al-Carbotelli v. Minister of Defense [42], at p. 13).

 

11. The Constituent Assembly was elected on January 25, 1949. As stated in the Declaration of Independence, its role was to draft a new constitution for the State. According to the original plan, and as envisioned by the Declaration, upon its election the Constituent Assembly was to have existed simultaneously with the Provisional Council of State. These two were to have been separate entities, each with its own composition and its own function. The Provisional Council of State was to have continued to exist in its role as legislative body. Its role was to enact the laws of the new State as they were needed. As evidenced by its name, this was to have been a provisional entity, which was to have been replaced by the ‘duly elected bodies of the State in accordance with a Constitution’ (Israel’s Declaration of Independence). The Constituent Assembly, whose only role was to enact a constitution for the State, was meant to operate alongside the Provisional Council. The Provisional Council of State was not elected by all the citizens and its composition was set by the Law and Administration Ordinance. The Constituent Assembly was chosen by a general election in which all the members of the Israeli community participated. In fact, the parallel existence of both of these bodies was not long lasting, for with the establishment of the Constituent Assembly, the Provisional Council of State was dissolved. This dissolution was not an unexpected step. It was planned in advance. It was clear to all that the Constituent Assembly would be engaged in both legislative and constituent activities. This was reflected in the campaigns and proposals of the candidates for election to the Constituent Assembly, which related to all the issues on the national agenda and not constitutional matters alone.

 

12. The next link in the chain of constitutional continuity was the decision of the Provisional Council of State to dissolve itself. Professor Yadin has discussed the factors on which this decision was based:

 

According to the Declaration, the tenure of the Council of State was to have ended on October 1, 1948. From that day, at the latest, the activities of the elected and regular authorities were to have commenced in accordance with the Constitution, which was to have been adopted in the meantime by the Constituent Assembly. However, the specified date passed without the adoption of a Constitution and without the establishment of regular, elected governmental bodies. According to the Declaration of Independence, the Provisional Council of State and the Provisional Government were to have continued to function not only until the election of the Constituent Assembly, but until the establishment of new governmental bodies in accordance with the new Constitution. The role of the Constituent Assembly was limited to the preparation and adoption of the Constitution, and the task of regular legislation was to have remained in the hands of the Provisional Council of State until after the Constituent Assembly completed its work. Until that time, the two entities were to have existed in tandem and the Provisional Government was to have continued to function until after the election of a parliament in accordance with the new Constitution. This plan was tied to the cut-off date of 1 October1948; all phases were intended to have been implemented within only four months (between 15 May 1948 and 1 October1948). The drafters of the Declaration cannot be criticized for this plan. They signed the Declaration before enemy aircraft appeared in the skies over Tel Aviv (albeit only one day earlier), before seven nations invaded the State, and they could not have foreseen the events of the next few months. In retrospect, in light of the events that took place following the establishment of the State, it is clear that the original plan could not have been implemented. The existence of the Provisional Council of State could no longer be reconciled with the simultaneous existence of the Constituent Assembly. It was therefore necessary to impose upon the Constituent Assembly all of the functions of the Council of State’ (Sefer Uri Yadin, Barak and Shefnitz, eds. (1990), at p. 80).

 

Together with its decision to dissolve, the Provisional Council of State decided that all of its powers would pass to the Constituent Assembly. This transfer was effected by the legislative action of the Provisional Council of State, in the form of the Constituent Assembly Transition Law, 5709-1949. This law provided that ‘the Provisional Council of State shall continue in office until the convening of the Constituent Assembly of the State of Israel; upon the convening of the Constituent Assembly the Provisional Council of State shall dissolve and cease to exist’ (s. 1). It was further provided that the Constituent Assembly ‘shall, so long as it does not itself otherwise declare, have all the powers vested by law in the Provisional Council of State’ (s. 3). Similarly it was provided that the Constituent Assembly would act ‘in accordance with the rules governing the meetings of the Provisional Council of State, with the necessary changes, as long as the Constituent Assembly has not otherwise decided’ (s. 2(d)). The Provisional Council of State debated whether or not to provide in advance that the Constituent Assembly was required to prepare a constitution and whether to prescribe the period within which such a constitution should be adopted. It was suggested that the law provide that ‘the Constituent Assembly will adopt a basic constitution for the State and, during the period of its operation, will be the legislative body of the State.’ A majority decided, however, not to issue any directives in this regard. ‘We will therefore leave the Constituent Assembly absolutely free as to both its function and its term’ (Sefer Uri Yadin, ibid., at p. 81). It should be emphasized that the decision regarding the dissolution of the Provisional Council of State and the passing of its authority to the Constituent Assembly was taken during the term of the Provisional Council of State. The members of the Provisional Council of State – and accordingly all Israeli citizens who voted in the elections for the Constituent Assembly – were aware that they were electing a body that would have both legislative and constituent authority, and would be authorized to oversee the government as well.

 

13. With the dissolution of the Provisional Council of State and the transfer of its powers to the Constituent Assembly, the latter was endowed with dual authority – legislative and constituent. Again, the original scheme of two entities with different powers was not realized. Henceforth, the constitutional basis would lie in a single entity – the Knesset – that acted with various powers (legislative and constituent, as well as others). The same body (the Knesset) therefore has two roles, or two main functions (‘two hats’). It is authorized to enact a constitution and it has the powers that were given to the Provisional Council of State. ‘Thus the Constituent Assembly, which was endowed by the Declaration with only one function – drafting the Constitution – took on the additional role of legislative authority’ (Rubinstein, ibid., at p. 43). ‘It was the Provisional Council of State that, upon its dissolution, presented the Constituent Assembly with an established fact: the unification of both functions within one framework’ (Rubinstein, at p. 448). There is no doubt that the Constituent Assembly (which has both constituent authority and regular legislative authority) was authorized to enact a Constitution. The fact that, with the dissolution of the Provisional Council of State, the Constituent Authority also became endowed with regular legislative authority does not negate its authority to enact a constitution. It should be noted that it is a common practice the world over for the Constituent Assembly to serve as a legislative authority as well (see Rubinstein, ibid., at p. 448). Professor Kelsen discussed this as follows:

 

It is possible that the organ specifically and formally authorized to create, abolish or amend statutes having the character of a constitution is different from the organ authorized to create, abolish or amend ordinary statutes. For example, the former function may be rendered by an organ different from the latter organ in composition and electoral procedure, such as a constituent national assembly. But usually both functions are performed by the same organ’ (H. Kelsen, Pure Theory of Law, (1967), at p. 223).

 

As Professor Akzin has stated:

 

Under the democratic model, even if a proposed constitution is destined to be approved by referendum, it is prepared by the constituent assembly, which is chosen by electoral procedures similar to those by which the members of the legislative body will be chosen, or – in the case of a revolution – according to the system preferred by the provisional authority. In such cases the constituent assembly acts as both the entity that prepares the constitution and, if the state is governed by a parliamentary system, as the legislative body and overseer of the government as well’ (Akzin, The Doctrine of Governments, vol. 2 (1966), at p. 35).

 

In a similar vein Professor Klein has noted:

 

The constituent body may continue to function for an extended period; during this period the constituent body functions as a legislative body as well. This may be described as a transitional period. The constituent body is not required to adopt the constitution as one document, and it may adopt a number of separate constitutional laws’ (Klein, ‘Constituent Authority in the State of Israel,’ II Hebrew Uni. L. Rev. (Mishpatim) (1970) 52).

 

Recently Professor Ackerman has reiterated:

 

There is nothing sacrosanct about a special constitutional convention. Although such a convention is likely to take the task of constitutional formulation seriously, many plausible texts have also been produced by constituent assemblies that have exercised plenary power on normal legislative matters as well’ (B. Ackerman, The Future of Liberal Revolution, (1992), at p. 59).

 

Thus the federal constitutional model of the United States, in which there are two separate institutions – a constitutional convention that adopts the constitution, and a regular legislature (Congress and the state legislatures) that enacts regular laws – is not the only way in which a constitution may be adopted. Even in the United States, state constitutions (as opposed to the federal constitution) have been adopted by constituent authorities that functioned as legislative authorities as well (see III Encyclopedia of the Social Sciences, (1953), at p. 245). It is interesting to note that in more than one Eastern European state that has recently undergone constitutional changes, constituent and regular legislative activities have been carried out by the same body. In most cases it was the regular parliament that was endowed with constituent authority. In Israel the Constituent Assembly was given the additional authority of regular legislation, as well as all the powers of the Provisional Council of State.

 

14. The next stage in constitutional continuity was the enactment of the Transition Law, 5709-1949. This was the most important piece of legislation enacted by the Knesset (now acting as both the constituent and legislative authority). This statute provided that ‘the legislative body of the State of Israel will be known as the “Knesset.” The Constituent Assembly will be known as the “First Knesset.” A delegate to the Constituent Assembly will be known as a “Member of Knesset”’ (s. 1). It also provided that an enactment by the Knesset would be denoted “law” (s. 2). The Transition Law 1949 did not affect the dual authority of the Constituent Assembly (now the “First Knesset”). Indeed the First Knesset engaged in lengthy debates on the subject of the Constitution (see Knesset Proceedings, vol. 5, at p. 714). No claim was made that the First Knesset was not empowered to do so. All agreed that the Knesset, as the constituent assembly, was authorized to enact a constitution for the State. The ensuing debate dealt with whether the Knesset was required to enact a constitution, and with the proposed content of the constitution. This debate continued for several months. It took place both in the Constitution, Law and Justice Committee and in the First Knesset plenum (for a report of these debates see The State Constitution – Report of the Constitution, Law and Justice Committee in the Matter of the Constitution for the State and the Debate in the First Knesset Plenum, published by the Knesset in 1952). It is common knowledge that the Prime Minister, David Ben-Gurion, opposed a constitution. Nonetheless, he did not deny the Knesset’s authority to enact one, stating as follows:

 

No one could, and even today no one can say that there will be no constitution. The matter depends upon the Knesset’s decision. If the Knesset decides that there will be a constitution – there will be a constitution. If the Knesset decides that for now there will be no constitution – there will be none’ (supra).

 

The First Knesset (i.e. the Constituent Assembly) concluded this debate with a compromise decision adopted on June 13, 1950. This decision was initiated by MK Harrari and is therefore called the Harrari Decision, which provides as follows:

The First Knesset charges the Constitution, Law and Justice Committee with the preparation of a proposed constitution for the State. The constitution will be composed of chapters, with each chapter constituting a Basic Law unto itself. The chapters will be brought before the Knesset if and when the Committee completes its work and all the chapters together will constitute the Constitution for the State’ (Knesset Proceedings, vol. 5, at p. 1743).

 

This was a compromise decision. It left several options open. On the one hand, it accepted the principle that there would be a formal constitution and that the idea of a constitution would not be abandoned. On the other hand, it accepted the principle that the constitution would not be enacted immediately as one discrete document, but rather chapter by chapter, over the course of time, which would certainly extend beyond the term of the First Knesset. Nevertheless, after this decision no one disputed the Knesset’s authority to enact a constitution for Israel. The Harrari Decision was not intended to negate the Knesset’s authority to enact a constitution and, as a “decision” of the Knesset, it could not negate this authority. Thus, the significance of the Harrari Decision was, as it stated, that the Constitutional Committee would prepare a constitution for the state in “installments.” It was clear to all that this would not be an immediate procedure. It was clear to all that it would not be completed by the First Knesset. Professor Rubinstein has rightly noted that:

 

There can be no doubt as to the First Knesset’s authority to enact a constitution or laws of a constitutional character that stand above regular legislation. The change in the name of the Constituent Assembly certainly did not constitute a change in its nature. Even the consolidation of its functions – legislative and constituent – did not change anything’ (Rubinstein, ibid., at p. 448).

 

The First Knesset dispersed without the Constitution, Law and Justice Committee having prepared a proposed constitution, and without any part of a constitution having been brought before the Knesset plenum.

 

15. During the term of the First Knesset – i.e. the Constituent Assembly – no constituent action was undertaken. The Knesset had to enact a special law to decide upon its dissolution. In so doing, the Knesset was aware that it had not only regular legislative powers, but also constituent powers. It sought to ensure that all powers with which it was invested would pass to subsequent Knessets as well. This act seems superfluous to me. The powers given to the Knesset were given to every Knesset. As the central organ of the State, the Knesset endures forever. There is no need for special provisions as to the Knesset’s continuity other than those dealing with issues of secondary character (such as the continuity of draft laws). The reference to the “First” and “Second” Knessets and so on is only theoretical and reflects the first steps of the Israeli parliamentary system. In principle, a change in the composition of the Knesset cannot be considered a change in the Knesset. The Knesset is one body; elections and changes in the members of the Knesset do not require a formal passing of authority from one body to the next. Apparently this matter had not yet been clarified in the early days of the State and therefore – purely for caution’s sake – the Second Knesset Transition Law was enacted in 1951. That law provided for continuity between the end of the First Knesset’s term and the beginning of the Second Knesset’s term (s. 1). Thus, ‘the Second Knesset and its members will have all the powers, rights and obligations as the First Knesset and its members’ (s. 5). It provided further that the Second Knesset would act in accordance with the charter, decisions, precedent and procedures of the First Knesset (s. 6). Moreover, it provided explicitly in s. 9 that:

 

Wherever in any law reference is made to the Constituent Assembly or the First Knesset, such reference shall, from the day of the convening of the Second Knesset, be deemed to refer to the Second Knesset, unless the context requires a different meaning.

 

Thus it was provided that ‘this law will also apply, with the necessary changes, to the Third and any subsequent Knesset, so long as the Knesset does not adopt a contrary law dealing with this matter’ (s. 10). It is interesting to note that a number of Members of Knesset suggested that the law expressly provide that the ‘role of the Second Knesset is to enact a basic constitution for Israel’ (see Knesset Proceedings, vol. 8, at p. 1576). MK Bar-Rav-Hai, in the name of the majority of the Constitution, Law and Justice Committee, opposed such a provision. He noted that ‘the suggested change is an empty declaration without any practical purpose. The legislative inheritance of the First Knesset is located in the records of the Knesset and is automatically transferred. The Second Knesset is sovereign. It will attend to matters at its own will ... Because there is no practical value to this change, and because the Second Knesset itself will decide whether to continue to enact Basic Laws where the First Knesset left off, or to begin this chapter anew – there is no place and no need to provide for this matter in the Transition Law’ (ibid., at p. 1579).

 

16. The First Knesset – which was also the Constituent Assembly elected for the express purpose of drafting the constitution – was dissolved. The Second Knesset was elected. Was the Second Knessset also invested with constituent authority, empowering it to enact a constitution for Israel? This is not a simple question. Had it been brought before the Supreme Court at the beginning of the Second Knesset’s term, the matter could have been decided either way. On the one hand it could have been argued that constituent authority was given to the Knesset, to every Knesset, regardless of its composition. The Constituent Assembly itself provided in the Second Knesset Transition Law that each Knesset is empowered with constituent authority. This edict of the Constituent Assembly must be heeded. It is not appropriate for the Court to declare that the Constituent Assembly itself deviated from its own authority in such a central matter. Similarly, it could have been claimed that the Harrari Decision – which was adopted by the Constituent Assembly – determined that the constitution was to have been enacted chapter by chapter; clearly this process would not have been completed during the term of the First Knesset. Constitutional continuity must be recognized in order to give effect to this decision of the Knesset. On the other hand it could have been contended that the Constituent Assembly derived its authority from the people – and therefore with the dispersal of the Constituent Assembly it was necessary to turn again to the people for its reelection. The Constituent Assembly was not “authorized” to transfer its authority. Thus it might have been argued that the Harrari Decision required that the powers of the First Knesset could only have been transferred to the Second Knesset by Basic Law and not by regular law.

 

Had I been asked to decide this constitutional question at the beginning of the Second Knesset’s term, I would have asked the following question: what are the underlying beliefs of the Israeli community at this time as to the enactment of a constitution and the power of the Knesset to adopt a constitution for Israel? I would have inquired as to the best interpretation of the legal and social history in the matter of the constitutional undertaking with the convening of the Second Knesset. In this context I would have examined the flow of constitutional continuity from the Declaration of Independence. Similarly, I would have asked whether the party platforms in the elections for the Second Knesset dealt with the continuation of the constitutional undertaking and with the continuation of the Knesset’s activities in endowing Israel with a constitution. An affirmative answer to these questions would have enabled me to determine even then that, despite strong assertions to the contrary, the Second Knesset was endowed with constituent authority, whether because of constitutional continuity (under Kelsen’s model), or because it had become generally recognized that the Knesset was invested with constituent authority (Hart’s model), or because that was the best interpretation of the legal practices of the Israeli community at that time (Dworkin’s model).

 

I have now undertaken this examination. Thus, for example, I have studied the election platforms of all the political parties that participated in the elections for the Second Knesset. Most of the platforms include statements regarding the constitution and its implementation. Often this is a central issue. The platform of the Workers of Israel Party (“Mapai”) stated that ‘the Second Knesset must see the completion of the enactment of the Basic Laws as one of its first objectives.’ This was followed by a long list of proposed constitutional arrangements, such as the division of powers among governmental bodies and various human rights. The platform of the Organization of General Zionists, the Centrist Party (“Z”), stated that ‘adoption of the Basic Laws for the State is an absolute necessity for the protection of the fundamental rights of every citizen.’ The platform of the United Labour Party (“Mapam”) provided that ‘the Second Knesset must correct what the First Knesset distorted and enact a Basic Law for the State, so as to ensure, inter alia…’ – and here follows a comprehensive list of matters that must be provided for in the constitution. The platform of the Herut Party (“H”) asserted that ‘Mapai and its supporters intentionally prevented the Constituent Assembly from fulfilling its first function: providing a basic constitution for the State. The Second Knesset must correct this dereliction.’ The platform then sets forth the content of the ‘basic constitution.’ The Progressive Party (“P”) platform stated that ‘in order to protect the democratic and popular nature of our State, a constitution must be enacted. The Progressive Party regretfully notes that the First Knesset did not complete this task. Even the First Knesset’s decision, as proposed by the Progressive Party representative, that the basic constitution would be constructed chapter by chapter, was not realized. The Progressive Party will fight in the Second Knesset for a constitution of deep social content, which will strengthen the rule of law in the State.’

 

The Platform of Agudath Yisrael provided that ‘as long as a majority of the representatives of the legislative institutions do not recognize the authority of the Torah as the supreme law, which may not be contravened, Haredi Judaism will oppose the adoption of a formalized basic constitution for the State.’ The platform of Mizrahi and the Nonaligned Religious Party (“B”) did not mention the issue of the constitution. The platform of the Israeli Communist Party (“C”) stated that ‘since the establishment of the State we have fought for a republican, democratic and secular constitution.’ The list of HaPoel Mizrahi (Torah Ve’Avoda) (“V”) provided that ‘HaPoel Mizrahi sees as the job of the Second Knesset the completion of the Basic Laws for the procedures of the government and its powers, the rights and obligations of the individual, the order of justice and the social foundations of the State. HaPoel Mizrahi will fight so that these laws will be an expression of a true democratic way of life in the spirit of the Torah of Israel.’ The list of the Sepharadim Ve’Edot HaMizrah (“SD”) stated that they supported the policy line of the Organization of General Zionists, the Centrist Party. The platform of Association of Yemenites for Israel (“L”) did not refer to the constitution.

 

17. It follows that there can be no doubt that the issues of the constitution and the Basic Laws were on the national agenda, were discussed in the elections, and were the subject of clear positions taken by the various parties. It is true that the matter of the constitution and the Basic Laws was not the only subject on the national agenda. But that is of no account. It is enough that the question was brought to the attention of the voter, who gave his opinion on the question of the constitution. If in the next Knesset election a constitution for the State were presented, and the people demanded, by electing the various parties, in light of their various platforms, to either approve or disapprove the constitution – would anyone contend that the people did not thereby express its will as to the constitution? The determining factor is clearly the understanding of the community and, consequently, the understanding of the Court. Such an understanding existed in the elections for the Second and subsequent Knessets. There is therefore no reason to negate constitutional continuity, and to deny the Second Knesset – on the basis of the arguments that we have brought – the authority to enact a constitution for Israel. Accordingly, with the convening of the Second Knesset (on December 22, 1952), the new government presented its outline plan. The first clause of the outline – before any other clause, including the clause referring to ‘the concern for the security of the state and the ingathering of exiles’ – provides that ‘with the series of the Basic Laws that will form the basic constitution of Israel, the democratic government of the State will be strengthened and secured.’ This is followed by a long list of subparagraphs, constituting approximately half of the outline, as to the content of the future constitution.

 

18. The question of the constitutional continuity of the Knesset’s power to enact a constitution did not come before the Supreme Court in 1951, with the convening of the Second Knesset. We do not have a judicial determination of this matter. The constitutional question arises before us today, in 1995 during the term of the Thirteenth Knesset. I have no doubt that our decision today must be unequivocal: constitutional continuity was not interrupted. The Second Knesset was given the powers of the Constituent Assembly. Any other conclusion is inconsistent with our national experience. Forty-four years have passed since the Second Knesset was convened. The matter of the constitution has appeared on the agenda and has been included in all the campaigns for each of the many elections that have been held since then. During all those years the Knesset continued in the constitutional undertaking and has enacted eleven Basic Laws; it has continued to see itself as authorized to enact a constitution for Israel; it has continued to entrench the clauses of the Basic Laws against infringement by regular legislation. During all those years teachers and scholars of law have continued to see the Knesset as the authority empowered to enact a constitution for Israel. They have raised generations of students and teachers of law who, in their turn, see the Knesset as empowered with both constituent and legislative authority.

 

In the intervening years the Supreme Court has ruled that the entrenchment provisions of the Basic Laws have constitutional power and may invalidate contrary provisions of regular legislation. In my opinion, these facts lead to the inescapable conclusion that constitutional continuity persists. By general recognition, the Knesset – the Second Knesset and each subsequent Knesset – is authorized to enact a constitution for Israel. Today’s Knesset has constituent authority. The Knesset has “two hats”: the hat of constituent authority and the hat of legislative authority.

 

My position relies, therefore, on all of the factors that attest to a continuous constitutional history, beginning with the convening of the Second Knesset. I will continue with a description of that constitutional continuity, the constitutional understanding of the legal community, and the position of the Supreme Court up until now. I am doing so for two reasons: first, because constitutional continuity links the constituent authority of today’s Knesset with that of the First Knesset (the Constituent Assembly); and second, because these objective normative facts support my conclusion that according to the rule of recognition of the Israeli legal system, our Knesset – every Knesset – is endowed with constituent authority. That is the best interpretation of the entirety of our legal and social history.

 

(iii) The Knesset’s understanding of itself as invested with constituent authority

 

19. As discussed above, the Knesset’s constituent authority is based upon the objective fact of constitutional continuity. This is not only the reasoned conclusion of the disinterested observer; it is the understanding of the Knesset itself. My claim is not, however, that the Knesset is endowed with constituent authority solely because it sees itself as so endowed. The Knesset may not empower itself with constituent authority by its own decision. My claim is that the Knesset’s – every Knesset’s – perception of itself is itself an objective factor that, in the context of the entirety of the evidence, supports the foundation on which the Court builds its legal structure. This construction is a judicial function, which is undertaken by the judge – and the judge alone. This is the great significance of the Knesset’s understanding of itself. I do not claim that there is a legal obligation to enact a rigid constitution. My only claim is that the Knesset saw itself as empowered to enact a rigid constitution. Of course, the Knesset was also entitled to refrain from using this authority and enact a non-rigid constitution or no constitution at all. Thus, the Second Knesset and each subsequent Knesset saw itself as empowered to enact a constitution. They based this authority primarily on the idea of the Constituent Assembly, on the Harrari Decision, and on the status of each Knesset as a body utilizing its constituent authority. I will begin with the Second Knesset, which, as mentioned, is the more problematic.

 

20. The Second Knesset dealt with the preparation of the first chapter of the Constitution of the State, Basic Law: The Knesset. The proposed law was published on October 23, 1953 by the Constitution, Law and Justice Committee of the Second Knesset. The proposal was debated by the Second Knesset plenum. In presenting the draft law for a first reading, the Chairman of the Subcommittee for Basic Laws, MK Bar Yehuda, referred to the Harrari Decision and the dissolution of the First Knesset and continued as follows:

 

But a relatively short time thereafter, in April 1951, came the decision to elect the Second Knesset. The Second Knesset began its work at the end of August 1951. More than two years have passed since then, while the gristmill of the Constitution, Law and Justice Committee ground the proposals sufficiently to enable presentation of the first in the series of the Basic Laws. During this period we have passed a number of laws that are clearly Basic Laws by their nature, even if not in form; I refer for example to the Law of Return and the Judges Law. But these laws were put forth by the government, and the work was done in the course of the Knesset’s regular routine and in the regular manner. From the point of view of fulfilling the obligation  that was imposed at the time on the First Knesset in its role as the Constituent Assembly of the State of Israel, and which was passed on to the Knesset together with the latter’s regular legislative work, this law is the first section of the Constitution of the State to be presented before the Knesset. It is now presented for a first reading and unfortunately I cannot know how long it will take until we reach a second reading – in other words, debate on the revised proposal – after which there will be a binding decision’ (Knesset Proceedings, vol. 15, at p. 57).

 

A review of the other speeches reveals that the speakers considered themselves – as members of a body endowed with constituent authority – empowered to enact a constitution. Basic Law: The Knesset was not enacted by the Second Knesset because the political will to do so was lacking. No one contended that the Knesset lacked the legal authority to enact such a law. All participants in the ‘political game’ of that period were aware that they were empowered to enact a constitution.

 

21. The Second Knesset finished the debate with a first reading of the proposed Basic Law. The proposal was passed to the Committee and the Second Knesset thereby finished its term without adopting any Basic Law. The debate on the proposed Basic Law: The Knesset was renewed in the Third Knesset. The proposed Basic Law: The Knesset was published anew and it was thoroughly debated. No one contended that the Third Knesset was not empowered to adopt a constitution. The Third Knesset’s debates were seen by all as fulfilling the Knesset’s role according to the Harrari Decision, which was the decision of the Constituent Assembly (the First Knesset) to adopt a constitution for Israel. MK Harrari himself reiterated this (on October 8, 1956) when he stated that:

 

In accordance with the decision of the First Knesset, we are not now dealing with individual laws, but rather with the chapters of the constitution of the State of Israel’ (Knesset Proceedings, vol. 21, at p. 4).

 

MK Harrari read the Harrari Decision before the Knesset plenum and added that ‘[we] are therefore debating today one of the chapters of the proposed constitution for the State – the chapter that deals with the Knesset’ (ibid., at p. 6). MK Harrari concluded his remarks by stating as follows:

 

I hope that despite the slow pace of the Knesset’s work, we will succeed in completing at least two articles of the constitution for the State in this, the Third Knesset. We must not forget that when the Knesset accepted the proposal to prepare a constitution for the State it was aware of the fact that other states worked for many years in preparing their constitutions. Eleven years passed before the complete adoption of the United States constitution, which has existed for so many years; preparation of the Soviet Russian constitution lasted for thirteen years. There is therefore no reason for us to despair or to feel that the extended period of preparation has diminished our chances for an organized, orderly constitution that will be the glory of the State of Israel’ (ibid., at p. 6).

 

Thus it is clear that the Knesset saw itself as authorized to enact a constitution, and that it considered the Basic Laws to be part of the constitution. Upon completion of the first reading debate, the proposal passed to the Constitution, Law and Justice Committee. The proposal was presented for a second reading on February 11, 1958. MK Nir-Refalkes presented the proposal in the name of the Constitution, Law and Justice Committee, noting that:

 

The Constitution, Law and Justice Committee takes particular satisfaction in presenting to the Knesset for a second reading Basic Law: The Knesset, which will be a chapter of our basic constitution, in accordance with the June 1950 decision of the First Knesset.’

 

In the course of the second reading the comments of several members of Knesset were adopted and a number of formal entrenchment provisions were inserted into the Basic Law. It was provided that section 4, which sets forth election procedures, ‘shall not be altered save by a majority of the members of the Knesset.’ Section 44 entrenched the Basic Law against the effect of emergency regulations. Section 45 provided that ‘Section 44, or this section, shall not be altered except by a majority of eighty members of the Knesset.’ During the debate on these entrenchment provisions, several opinions were expressed as to their meaning. No contention was made that the Knesset was not empowered to entrench provisions of a Basic Law. It must be noted that more than a year after the adoption of the Basic Law: The Knesset, on February 12, 1958, the Knesset debated Amendment (No. 3) to the Law. The purpose of this amendment was to provide that ‘The majority required by this Law to for a variation of section. 4, 44 or 45 shall be required for decisions of the Knesset plenary at every stage of law-making.’ This amendment was adopted. During the course of the debate, MK Zadok opposed the proposed amendment, arguing that the Knesset was not authorized to limit itself (Knesset Proceedings, vol. 27, at p. 2961). As mentioned above, the proposed amendment was adopted.

 

22. The Fourth Knesset did not enact any Basic Law. This concerned several Members of Knesset. MK Nir-Refalkes tabled a motion in this matter. He asked that the process of enacting a constitution be accelerated and referred to the Harrari Decision of the Constituent Assembly. He noted that ‘meanwhile ten years have passed, during which period the Committees on the Constitution, Law and Justice of the First, Second and Third Knessets have enacted only one Basic Law – Basic Law: The Knesset, which was enacted in 1958. Our experience proves that this method of enacting a constitution has led to an anomalous situation. Twelve years have passed since the establishment of the State and not only do we have no constitution, but there is no chance that we will have one in the next fifty years’ (Knesset Proceedings, vol. 28, at p. 585).

 

MK Nir-Refalkes noted that the government manifesto provided that ‘the Fourth Knesset should complete the enactment of the Basic Law, which will be consolidated to form the basic constitution of the State.’ He added that all factions of the house were united in this view and he requested that the preparation of the constitution be accelerated. The government response was given by the Minister of Justice, Mr Pinhas Rosen. The Minister also mentioned the Harrari Decision and the government platform. He expressed the hope that the Fourth Knesset would indeed complete the work of preparing the constitution. The debate passed to the Constitution, Law and Justice Committee. However, the Minister of Justice’s hopes were not realized. The Fourth Knesset enacted only the Basic Law: Israel Lands. The Fifth Knesset enacted Basic Law: The President of the State. In the Sixth Knesset, the focus on the enactment of Basic Laws was intensified. On November 23, 1965 the Constitution, Law and Justice Committee established a subcommittee that dealt solely with the constitution. This subcommittee was headed by MK Zadok and succeeded in preparing one Basic Law, Basic Law: The Government, which was passed by the Seventh Knesset.

23. Between the enactment of Basic Law: The Knesset in 1958 and the enactment of the two Basic Laws dealing with human rights, the Knesset passed another nine Basic Laws. Some of them included provisions (albeit minor) that formally entrenched certain provisions of the Basic Laws. The enactment of these provisions presented the Knesset with no legislative difficulty. When the Eighth Knesset was presented with a first reading of the proposed Basic Law: Legislation, 5736-1976 – the proposal that entrenched all of the Basic Laws and provided for judicial review of the constitutionality of regular legislation – it had no practical difficulty with this entrenchment. Aside from a few isolated Members of Knesset, all factions of the house were in agreement as to the Knesset’s authority to enact a constitution for Israel and its power to entrench provisions of the constitution. Many of the speakers expressly noted that the Knesset was thereby acting in accordance with the Harrari Decision (see Knesset Proceedings, vol. 76, at p. 1704; Knesset Proceedings, vol. 78, at p. 954). This was the case when the draft Basic Law: Legislation was presented to the Ninth Knesset for a first reading (Knesset Proceedings, vol. 83, at p. 3975). The third proposal of the Basic Law: Legislation was debated in a first reading in the Thirteenth Knesset (Knesset Proceedings, second session, at p. 4302; third session, at p. 936). Aside from several isolated members of Knesset, no objection was raised as to the entrenchment of the Basic Laws. There was a debate, of course, as to the strength of the entrenchment, but the common position of most members of the Knesset was that this was a political and not a legal question, since the Knesset was empowered to entrench the Basic Law if it so desired.

 

24. I will now address the question of continuity and the constituent authority of the Knesset as to the Basic Laws dealing with human rights. Proposals dealing with human rights were already included in draft laws presented to the Committee on the Constitution of the Provisional Council of State. However, legislation in this area did not proceed. With the completion of Basic Law: The Knesset, the Constitution, Law and Justice Committee announced that the next Basic Law would deal with human rights. This did not occur. Against this background, on January 15, 1964 MK Klinghoffer presented to the Fifth Knesset the proposed Basic Law: Charter of Basic Human Rights, 5724-1963. This was a comprehensive, impressive proposal for a constitutional settlement with regard to human rights in Israel. The proposal provided for substantive and formal entrenchment. It provided that ‘this law may be amended only by a majority of two thirds of all members of Knesset’ (s. 73). It provided for the possibility that human rights could be infringed by regular legislation, but only if that legislation met substantive standards. In the comments to the proposal that were submitted to the Knesset, MK Klinghoffer referred specifically to the Knesset’s constituent authority to enact a constitution for Israel:

 

In the matter of the authority to adopt a fixed constitutional law, it must be noted that this authority passed from the First Knesset (which was elected as the Constituent Assembly) to the Second Knesset, and thereafter from Knesset to Knesset’ (Second Knesset Transition Law, ss. 5 and 10) (Knesset Proceedings, vol. 38, at p. 801).

 

The government opposed this initiative. The Minister of Justice, Mr Dov Yosef, argued forcefully against MK Klinghoffer’s initiative. He noted, inter alia, that ‘I do not think that there is a law that stands “above the regular legislature.” We do not have two legislatures. We have only the Knesset, and in my opinion, a law of the Knesset cannot limit its right to legislate, and if there is such a provision in a law, the Knesset is entitled, in my opinion, to cancel the clause that ostensibly limits its rights’ (ibid., at p. 789). The Justice Minister added that it would be otherwise if we had a constituent assembly. MK Begin retorted that ‘We have a Constituent Assembly as well.’ (ibid., at p. 789).

MK Klinghoffer also responded to the Justice Minister as follows:

 

The Knesset is the heir to the Constituent Assembly. The Fifth Knesset is empowered with the authority of the Constituent Assembly to enact a constitution, and this is in accordance with the Constituent Assembly (Transition) Ordinance and the Second Knesset Transition Law’ (ibid., at p. 793).

MK Klinghoffer’s proposal failed (on January 15, 1964).

 

25. A number of years passed. The public climate changed (see Lahav and Kretzmer, “The Charter of Human and Citizen’s Rights in Israel: A Constitutional Achievement or Hocus-Pocus,” 7 Hebrew Univ. L. Rev. (Mishpatim) (1976) 154). The Constitution, Law and Justice Committee of the Seventh Knesset continued with the work of the Subcommittee on Basic Laws. The Committee was headed by MK B. Levy. The Committee held comprehensive debates. The draft Basic Law: Human and Citizen’s Rights was published by the Committee. The proposed law set forth certain human rights and limited the power of statue to infringe those rights except under certain conditions. It included provisions according to which ‘contradictory statutory provisions that are adopted after the effective date of this Basic Law – are void’ (s. 20(a)). At the same time, the Basic Law did not contain entrenchment provisions. The proposal was not substantively debated in the Seventh Knesset. With the convening of the Eighth Knesset the debate on the proposal continued in the Subcommittee for Basic Laws headed by MK B. Levy. It was submitted on June 4, 1974 for a first reading. In presenting the proposed Basic Law for a first reading, MK B. Levy referred to the Harrari Decision and noted that, in enacting the Basic Law, the Knesset was acting within its constituent authority:

 

Constituent authority, i.e. the authority to enact a constitution for the State, was transferred from the Constituent Assembly, i.e. the First Knesset, to the Second Knesset and every Knesset thereafter, including the Eighth Knesset. As the Second Knesset Transition Law provides ... In enacting the Basic Law: Human and Citizen’s Rights we are therefore acting in accordance with the constituent authority of the Knesset’ (Knesset Proceedings, vol. 70, at p. 1566). 

 

An extended debate on the draft law ensued. The Minister of Justice, MK Zadok, participated in the debate. He expressed his opinion that the Basic Law should be entrenched in order to prevent infringement of basic rights by regular legislation. MK Zadok noted that:

… I agree that the Knesset must be given broad latitude and room to maneuver in its legislative work, but this sovereignty should not be interpreted to permit arbitrariness as to basic principles. It seems to me that the doctrine of the rule of law, which we all espouse, means that everyone is subject to the law – the government, the administration, the President, the State Comptroller – and the Knesset as well. Just as the other state institutions are endowed with a limited array of authorities, so should the Knesset’s legislative powers be similarly limited, albeit with greater flexibility. The primary form taken by this limitation is the Citizen’s Rights Law, in which are anchored and expressed those basic principles that form the basis for government itself

(Knesset Proceedings, vol. 70, at p. 2485).

 

MK Zadok further insisted that the proposed law was intended to ‘raise the Basic Law on citizens’ rights to the level of a preferred norm against which the validity of regular laws will be tested’ and therefore it must be treated with great care (ibid., at p. 2485). As to entrenchment of the Basic Law against regular legislation that does not meet its requirements, MK Zadok noted that:

 

The laws that have been enacted before this Law takes effect have been enacted by the sovereign Knesset under its unlimited legislative power. They are the statutory regime under which we live and they cannot be called into question. This is not so as to laws that will be enacted by the Knesset in the future, after the establishment of the norms set forth in the Basic Law on Citizens’ Rights, with the Knesset aware of and restricted by those norms the validity of those future laws will be tested against the Basic Law.

 

The debate in the Knesset was comprehensive. The Knesset debated the question of whether to entrench the Basic Law – in the same way that s. 4 of the Basic Law: The Knesset was entrenched – so that the Law could be amended only by a special majority. The various rights were discussed as well. The draft law passed the first reading and was handed over to the Constitution, Law and Justice Committee. The debate in the Committee concentrated primarily on the question of whether to entrench the Basic Law. It was decided to defer the debate on this question until a decision was reached as to the fate of the Basic Law: Legislation – which was being studied by the Committee at the same time – and which included general entrenchment provisions. What is clear is that the Members of Knesset – the plenum as well as the committee – had no doubt as to the power of the Knesset to entrench the clauses of the Basic Law: Human and Citizens’ Rights. Many of the Members of Knesset referred to the Declaration of Independence, the Harrari Decision and the constitutional undertaking, and pointed to constitutional continuity. It occurred to none that the constitutional continuity was interrupted. No one contended that the Knesset was not entitled to entrench its instructions. The primary debate centered on the question of entrenchment as one of political policy  (was it desirable?), and not as a legal problem (was it possible?) (see Lahav and Kretzmer; see also B. Bracha, “The Protection of Human Rights in Israel,” 12 Israel Yearbook on Human Rights (1982) 110); R. Gavison, “The Controversy Over Israel’s Bill of Rights,” 15 Israel Yearbook on Human Rights (1985) 113).

 

26. The Eighth Knesset continued to debate the proposed Basic Law: Human and Citizens’ Rights. MK Aridor headed the subcommittee. The proposal prepared by the Committee provided that previously enacted statutes repugnant to the Basic Law would be invalidated. The proposal did not advance in the legislative process.

 

27. In the Tenth Knesset, MK Professor Rubinstein renewed Professor Klinghoffer’s proposal. It was put forth (on June 2, 1982) as a private draft law (Proposed Basic Law: Bill of Human Rights, 1982). In his comments on the proposal Professor Rubinstein wrote that:

 

Since (the dismissal of Professor Klinghoffer’s proposal – A.B.), it has become clear to various sectors of the community that there is a need for the enactment of a Basic Law dealing with human rights, for it is fitting that these substantive issues be entrenched in a Basic Law that stands above regular legislation.

 

In his speech before the Knesset plenum MK Rubinstein added that:

 

This draft law is intended to restrain the legislature. It is also intended to protect the citizen from legislation that infringes his basic rights, for this is the implicit meaning of the word constitution. The very word constitution means restraint of the omnipotence and sovereignty of the Knesset as a legislative body’ (Knesset Proceedings, vol. 94, at p. 2682).

 

Minister of Justice, MK Nissim – unlike his predecessor of eighteen years earlier, Minister Dov Yosef – agreed to pass the proposal to the Constitution, Law and Justice Committee. In his reply, Minister Nissim noted that:

 

Today, I too say that it is right for a constitution to be fixed and entrenched. There is no value whatsoever in laws, even those denoted Basic Laws, that are not fixed both as to their adoption and as to their amendment ... Since we are discussing a group of Basic Laws that will together form a constitution, they must be fixed and entrenched’ (ibid., at p. 2682).

 

The proposal passed to the Constitution, Law and Justice Committee. The subcommittee on Basic Laws that examined the proposal was headed by MK S. Aloni. The subcommittee held extensive debates. It examined the previous proposals that were debated by previous Knessets. It studied the European Convention on Human Rights. It examined the German Basic Law and the Canadian Charter of Rights and Freedoms. It heard from Professors Klinghoffer, Klein and Akzin. The Committee’s debates were published (Debates of the Committee on the Basic Laws of the Tenth Knesset). An examination of the Committee’s debates reveals that the participants shared the view that the Knesset is empowered and entitled to entrench human rights as constitutional supra-legislative rights. At the conclusion of the debates it was decided to present the proposal for a first reading. The proposed Basic Law: Bill of Basic Human Rights was tabled for a first reading (on March 1, 1983). The comments noted that ‘there is a need for the enactment of a Basic Law on the subject of human rights, for these substantive issues should be entrenched in a Basic Law that stands above regular legislation’ (ibid., at p. 111). In his words of introduction, MK Rubinstein emphasized that:

This proposed law is based upon the principle of entrenchment of basic human and civil rights. It also sets forth a program that, in conjunction with the proposed Basic Law: Legislation, will enable judicial review of violations of this entrenchment, of harm to the idea that human and civil rights stand above the desires of the majority and above regular and routine legislation.

 

At the conclusion of his comments, MK Rubinstein noted that the debate on this proposed Basic Law continues the constitutional undertaking:

 

This proposed law, if adopted, will come close to completing the task of adopting a constitution, which the Declaration of Independence imposed upon the Constituent Assembly, later the First Knesset. As we recall, Members of Knesset, the Constituent Assembly did not complete this important task. Instead of fulfilling its assignment the Constituent Assembly provided that the constitution would be given chapter by chapter by means of the Basic Laws that would be combined to form one constitution. It seems to me that when the Knesset adopts... this proposed law and the proposed Basic Law: Legislation, it will complete the work of composing the constitution. If this happens, our Knesset, the Tenth Knesset, will be remembered as the body that finally fulfilled the important task of enacting a constitution for the State of Israel, and this will be its honor and its glory, that it completed what the other Knessets did not’ (ibid., at p. 1514).

 

MK Aloni – the Chair of the Subcommittee – supported the proposed law. In her comments she referred to the Constituent Assembly (ibid., at p. 1515). MK Shahal also supported the proposed law. He emphasized that ‘the most important thing is the control exerted by these basic principles over the regular legislation of the Knesset ... The safeguarding of human rights in a Basic Law implies a normative preference for these principles over the clauses of a regular law of the Knesset’ (ibid., at p. 1518).

 

With the conclusion of the debate the proposal passed to the Committee on Constitution, Law and Justice to be prepared for second and third readings. The renewed debate before the Committee was comprehensive and fundamental (see Debates of the Committee on Basic Laws of the Tenth Knesset). The entire debate proceeded, of course, on the basic assumption – which was expressly repeated more than once – that in the context of the constitution in general, and in the case of human rights in particular, the Knesset is empowered to entrench the clauses of the constitution, whether by formal or substantive entrenchment. The proposal was not presented for second or third readings because early elections were called.

 

28. The debate on Rubinstein’s proposal continued in the Eleventh Knesset, following the applicable continuity rules. Nonetheless, the debate on the proposal did not conclude with the enactment of the law (for an analysis of the reasons, see Rubinstein, ibid., at p. 706). A significant change occurred in the Twelfth Knesset. The new Justice Minister, MK Dan Meridor, presented to the government the draft Basic Law: Human Rights. This proposal did not advance. Against this background, Members of Knesset Rubinstein and Aloni presented proposals of their own. MK Aloni presented the proposal of the subcommittee that she chaired, which had not reached the stage of second and third readings in the Tenth Knesset. In presenting her proposal, MK Aloni commented that:

 

In the Declaration of Independence we provided that there would be a constitution. The First Knesset decided to defer this issue chapter by chapter – and in the meantime, so that there would not be a vacuum, we adopted the laws that were previously in effect… and step by step we began to prepare the constitution of the State of Israel. However, the Basic Law: Human Rights was rejected. Still, with the passage of time, the need to adopt this law has grown’ (Knesset Proceedings, vol. 115, at p. 401).

 

MK Rubinstein adopted the Justice Minister’s proposal. This proposal provided for both formal and substantive entrenchment. The proposal provided for judicial review of the constitutionality of laws that improperly infringe protected human rights. The Justice Minister sought to set aside MK Aloni’s proposal. He announced that the government would permit discretionary voting for MK Rubinstein’s proposal. He himself – who had by his efforts advanced the Basic Laws as to human rights – explained the key points of his proposal and sought to unite the Members of the entire house in supporting it. MK Aloni’s proposal was set aside. MK Rubinstein’s proposal – which was also the Justice Minister’s proposal – passed to the Committee. The Committee did not submit the proposed law for second and third readings.

 

29. Towards the end of the term of the Twelfth Knesset, MK Rubinstein, who must be credited with advancing the efforts for constitutional human rights, took a new step. He “deleted” from Minister Meridor’s proposal – which had been debated by the Constitution, Law and Justice Committee – a number of rights, and submitted them for a preliminary reading as a separate Basic Law. He placed upon the Knesset table, inter alia, the draft Basic Law: Freedom of Occupation and the draft Basic Law: Human Dignity and Liberty. At the end of the Twelfth Knesset these two laws completed the legislative process. Thus were enacted the Basic Law: Human Dignity and Liberty (see the debates on the first reading in Knesset Proceedings, fourth session, at pp. 1235, 1527; on the second and third readings, ibid., at p. 3781) and the Basic Law: Freedom of Occupation (see the debates on the first reading in Knesset Proceedings, fourth session, at p. 2595; on the second and third readings, fourth session, at p. 3390); for an analysis of the Knesset debates, see Karp, “The Basic Law: Human Dignity and Liberty – A Biography of Power Struggles,” I Mishpat uMimshal (1993), 323). In presenting Basic Law: Human Dignity and Liberty for second and third readings, the Chairman of the Constitution Law and Justice Committee, MK A. Lin – who contributed greatly to the enactment of the Basic Laws in the Twelfth Knesset – emphasized that the Basic Law is part of the State constitution, noting that:

Basic Law: Human Dignity and Liberty was prepared in, the course of many meetings of the Committee on the Constitution, and I emphasize this: the Constitution, Law and Justice Committee in its capacity as the committee on the constitution for the Knesset of Israel’ (Knesset Proceedings, vol. 125, at p. 3782).

 

30. In March 1994 the Knesset voided the original Basic Law: Freedom of Occupation and enacted in its stead a new Basic Law: Freedom of Occupation. This Basic Law also revised several provisions of the Basic Law: Human Dignity and Liberty. In presenting draft Basic Law: Freedom of Occupation for second and third readings MK Zucker noted that the debate on the Basic Law took place in the context of the Knesset’s authority as a constituent assembly, stating that:

I would like to remind you that today’s debate is taking place while we sit as a constituent assembly. We thereby continue the long tradition of debates held in this house in its role as Constituent Assembly. We are thus continuing to fulfill the Harrari Decision, which states: we will complete the constitution of the State of Israel chapter by chapter, by means of the Basic Laws.... Since 1948 the Knesset has essentially neglected part of its duties by failing to complete the enactment of a constitution for Israel, an assignment that it undertook both in its role as Constituent Assembly and in its role as the body charged with fulfillment of the Harrari Decision. It is true that this Knesset has almost completed the institutional portion of the Israeli constitution – those Basic Laws that deal with the government and the Knesset, the army, the Israel Lands Administration, the State Comptroller, the President of the State, etc. Even though these laws are not yet entrenched and have no preferred status over regular laws, nonetheless, the Knesset, as Constituent Assembly, has taken significant strides forward in this area ... The greatest failing of the Knesset has been in the field of human rights. Only two years ago did the Knesset begin the work that was supposed to have been undertaken in 1949, the enactment of a bill of rights for the Israeli citizen. Two years ago, this Knesset, in a significant and revolutionary step forward, enacted two Basic Laws, the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation. This step has aptly been called a constitutional revolution, which is only now beginning’ (Knesset Proceedings, vol. 136, at p. 5362).

 

MK Y. Katz attacked the Knesset’s work in its role as Constituent Assembly. He insisted that:

 

Every first year law student is told that we are a constituent assembly, from the First Knesset through all of the Knessets until today. We are a constituent assembly because we have the authority to enact a constitution and the Basic Laws are part of the same future constitution’ (ibid., at p. 5426).

 

In the course of the entire debate it was clear to the members of Knesset that the Knesset was exercising its constituent authority; that they were enacting a portion of the constitution, and that they were empowered to entrench it (with formal or substantive entrenchment). They debated whether it was desirable to enable a majority of the Knesset to change the Basic Law. MK Meridor suggested that the required majority be eighty members of Knesset (ibid., at p. 5426). His suggestion was rejected. No contention was made that the Knesset was not empowered to provide for such entrenchment.

 

31. Before completing this analysis of the Knesset’s understanding of its constituent authority, I will mention five points. First, in every Knesset election the matter of the constitution was included as part of the party platforms. I verified this as to the passage from First to Second Knesset. In their article, Lahav and Kretzmer note that in the elections for the Eighth Knesset most of the parties promised to work towards enactment of a Constitution or Basic Laws as to human rights (see Lahav and Kretzmer, ibid., at p. 153). I did not check the party platforms for other Knesset elections. It seems that this is a well-founded assumption, inasmuch as  the matter of the constitution in general, and human rights in particular, found a central place in the party platforms. This is very significant. It indicates that recognition of the Knesset’s constituent authority was an item on the national agenda, was debated in the political forum, and was determined by means of election results. When the Knesset dealt with the matter of the constitution and enacted the various Basic Laws, it drew its power from the people. The Basic Laws were not enacted without the people’s knowledge.

 

Second, in four instances the Supreme Court invalidated regular legislation that conflicted with entrenched provisions of the Basic Law: The Knesset (see paragraph 35, infra). In accordance with those decisions the Knesset subsequently revised its regular legislation to conform to the entrenched provisions of the Basic Law. We are therefore presented with a new aspect of the Knesset’s understanding of the matter. The Knesset, in exercising its legislative authority, understood well that it was bound by limitations it had imposed in accordance with its constituent authority.

 

Third, all of the entrenchment provisions were enacted within the framework of the Basic Laws, in the context of the constitutional process. Only in one case has a formal entrenchment provision been included in a regular law. This is in s. 3 of the  Investments by Public in Financial Assets in Israel (Protection) Law, 5744-1984. That section provides that ‘this law may not be changed nor may the appendix be revised unless by a majority of the Members of Knesset.’ It should be noted that during the debate on the first reading of this proposed law a number of Members of Knesset expressed the view that this self-limitation was not binding since it was not included in a Basic Law. MK Rubinstein took this position, noting that:

 

Previous Knessets have discussed the question of whether the Knesset can entrench laws against changes by simple majority, and the position has been more or less accepted – although it is still disputed – that when we are talking about the Knesset as a constituent authority,  i.e. when it is acting as the framer of the constitution, when it is enacting a section of the constitution, then it can deem a particular law of superior status. If we enact, for example, a law as to human rights ... then in such a law, which is a Basic Law in the constitution, it is appropriate to provide that the constitution stands above other laws. This is recognized by jurists. This has been implicitly recognized by the Supreme Court. However, is it possible that a regular financial law be accorded such status? How can it be provided that a financial law will stand above regular legislation in future Knessets? If so, then tomorrow or next week – at some date closer to elections – the Knesset may enact a law that will forbid any change to the State budget or salaries or investments or allotments to religious institutions or allotments to settlements, unless by a majority of eighty or ninety or one hundred and twenty Members of Knesset. Why not? After all, on the eve of elections “anything goes”; this is popular and may not be opposed. Does anyone believe that this will be upheld in court? Does anyone believe that such a law will be considered a constitutional Basic Law? Does anyone believe that this is serious? This section is not worth the paper on which it is written’ (Knesset Proceedings, at p. 2790).

 

The second and third readings took place on the same day. MK Rubinstein’s questions remained unanswered. They evidence an attitude that was well accepted in the Knesset, which distinguished between Basic Laws (fruit of the Knesset’s constituent authority) and regular laws (fruit of the Knesset’s legislative authority). I will note also – incidentally – that in the words of introduction of Members of Knesset S. Aloni (Chair of the Subcommittee on Basic Laws) and A. Kulas (Chair of the Constitution, Law and Justice Committee) to the pamphlet on the Debates of the Committee on Basic Laws of the Tenth Knesset (1984), the two noted that:

The Constituent Assembly elected in 1949 in accordance with the “Declaration of Independence” decided not to enact a constitution and not to dissolve itself. It declared itself the First Knesset, and the task of preparing the constitution was passed to it and to subsequent Knessets, which would prepare “Basic Laws” chapter by chapter. The Basic Laws would, upon their completion, be consolidated to form the constitution of the State. This decision gave the Knesset the status of the Constituent Assembly, and in this way the enactment of “Basic Laws” and their consolidation to form the constitution became subject to the initiative of the Members of Knesset and to the initiative of the government, or at least to its readiness to cooperate with the appropriate Knesset committee, the Constitution, Law and Justice Committee and the Committee on “Basic Laws.”’

 

All this is evidence for the widely held understanding of the Knesset that it is endowed with both constituent and legislative authority, and that the enactment of a constitution is the realization of the Knesset’s constituent authority. In the context of this authority a supra-legislative constitutional norm may be created.

 

Fourth, in the first years after establishment of the State there were many references to the Constituent Assembly, the Declaration of Independence, and the “Harrari Decision.” With the passage of time – and changes in the composition of the Knesset – the rhetoric changed. This is natural. A generation goes, and a generation comes, but the national memory did not change. The connection to the past was not severed. The Knesset continued to see itself as the heir of the Constituent Assembly, and as endowed with constituent authority.

 

Fifth, it is clear from the Declaration of Independence that the role (and authority) of the Constituent Assembly was to enact a constitution (‘in accordance with a Constitution, to be drawn up by a Constituent Assembly’). The intention underlying this provision was that a “formal constitution” would be adopted, in other words, that ‘the form of these norms would differ from that of other norms, particularly that of “regular” laws. This difference in form is expressed as a difference in the identity of the institution creating the norm (“constituent institution” as opposed to “legislature”) or at least in the process of its creation. Its goal is to emphasize the normative preference for the constitution over the other norms in the State’s system of positive law’ (Akzin, ibid., at p. 230). As to his understanding of the term “constitution” in the Declaration of Independence, Professor Akzin writes:

 

It is well known that the great majority of the founders of the State were convinced that at the apex of the legal system of Israel would stand a formal constitution that would provide a binding framework for the statutes and other legal norms of the State. This understanding was vividly expressed in the Declaration of Independence, and a first step in its implementation was taken by the Provisional Council of State, which on 1 Tamuz 5708 (July 8, 1948) established the Constitution Committee’ (Akzin, ibid., at p. 231).
 

In a similar vein, Professor Rubinstein notes that ‘the framers of the Declaration intended a formal constitution. We must also remember their clear objective that the Declaration accord with the resolution of the General Assembly of the United Nations’ (ibid., at p. 44). Professor Uri Yadin described this well in an article that appeared the day before elections took place for the Constituent Assembly:

 

Tomorrow, there will be elections for the Constituent Assembly of the State of Israel, the first elections since the State was established, and the most important for a long time to come. We are not about to elect a regular parliament, one of the many that will subsequently be elected to enact laws dealing with the many routine issues of our daily lives, but a special parliament, unique in its importance, which will be charged with endowing the State with one preeminent law that will stand as a cornerstone throughout the democratic life of the State – the Basic Law, the Constitution’ (Sefer Uri Yadin, ibid., at p. 82).

 

Thus the authority of the Constituent Assembly was not defined, but its task was clear: the enactment of a (formal) constitution for the State, i.e. the creation of a supra-legislative constitutional framework. At the same time, it seems to me that the Knesset was entitled not to enact any constitution, or to enact only a “substantive” constitution. This is a political question that is not determined by law.

(iv) The understanding of writers and commentators

 

32. I will now discuss the views of writers and commentators. I do so first and foremost because of the great importance that every legal system attributes to its scholars. Of course, the Court provides definitive interpretation. But it is natural for the judge to draw inspiration from the words of scholars. There is also a second and more compelling reason to turn to these views. From the understanding of writers and commentators one may learn about the basic approach of the Israeli legal community to constituent authority. Clearly this does not constitute decisive proof. Nonetheless, it is important evidence which, when seen together with other factors – the objective facts as to constitutional continuity, the political debates before the elections, the Knesset’s understanding of itself, the legal precedent and the Knesset’s reaction thereto – grounds the foundation upon which the Court may and should determine that the Knesset – every Knesset – is endowed with constituent authority; that by the principles of Israeli law, the Knesset – every Knesset – is empowered to enact a constitution for Israel; that this is the most appropriate interpretation of the social and political history of Israel.

 

33. Most of Israel’s scholars have viewed and continue to view the Knesset as endowed with constituent authority and therefore authorized to enact a constitution for Israel. It is true that in the past some disputed this position (see Nimmer, “The Use of Judicial Review in Israel’s Quest for a Constitution,” 70 Col. L. Rev. (1970) 1217. It is particularly fitting to mention Dr Likhovsky, who maintained that the Knesset – like the British Parliament – was not entitled to limit itself (see Likhovsky, “Can the Knesset Adopt a Constitution which will be the Supreme Law of the Land,” 4 Isr. L. Rev. (1969) 61; see also Hornstein, “Entrenchment of the Basic Laws,” 25 HaPraklit (1969) 648; Scheftler, “Reflections on Constitutional Questions,” 26 HaPraklit (1971) 6). These views were debated, analyzed and rejected. They remain the minority position. Since the end of the nineteen-fifties (with the enactment of the Basic Law: The Knesset) and the end of the nineteen-sixties (with the decision in the Bergman case [15]) the recurrent theme in Israeli constitutional literature has been that the Knesset has constituent authority, and that it is therefore authorized to adopt a constitution that will limit the Knesset in its role as legislature. Generations of law students have been inculcated with this view since the nineteen-sixties. First credit should be attributed to M. Sternberg (M. Sternberg, “A New Law or a Supreme Judicial Course,” 16 Molad (1958) 284). Sternberg’s essay was written shortly after the enactment of the Basic Law: The Knesset. The author wrote:

 

In approving the Basic Law, the Knesset functioned not merely as a legislative authority, but as a constituent assembly charged by the Declaration of Independence with adopting a constitution for the State. The Knesset always saw itself as a supreme institution as well, authorized to fulfill the function of enacting a constitution, and on several occasions expressly declared this to be so. In section 1 of the Transition Law the Knesset provided that the Constituent Assembly would be known as the “First Knesset” and that a delegate to the Assembly would be known as a “Member of Knesset.” This shows that the Knesset saw as its primary task the enactment of the constitution, and, it would seem, as its secondary task, the enactment of laws. The Second Knesset Transition Law provided that “wherever the law refers to the Constituent Assembly or the First Knesset it as if it referred to the Second Knesset.” Section 10 of that law provides that “this law will apply, with the necessary changes, to the Third Knesset and every subsequent Knesset.” Thus the group of people known as the Knesset constitutes another body as well, known as the Constituent Assembly, and it coexists, parallel to the Knesset itself, as a body whose purpose is construction of the constitution’ (p. 286).

 

A number of years afterward, with the enactment of the first two Basic Laws, Professor Akzin expressed his opinion on the matter before us (Akzin, “Basic Laws and Entrenched Laws in Israel,” 17 HaPraklit (1961) 230). Professor Akzin noted that in his opinion the Knesset exercises its constituent and legislative authority simultaneously. In his view, the Basic Laws are of a constitutional nature, in accordance with the Harrari Decision. Professor Akzin writes:

 

We do not maintain, as has been claimed from time to time in the Knesset and the press, that even if the Basic Law provided for preferential status it could not thereby tie the hands of a future Knesset: such a claim is pure sophistry and conceptual nihilism. While this claim may be true as to England, there it is consistent with the English rejection of a formal constitution superior to the regular legislature. It has already been decided that this claim cannot stand in a country where the idea of a formal constitution has gained currency. We are referring to South Africa, whose public law is based upon English law. The public law of the State of Israel has been based, since the Declaration of Independence, upon the proposition that a constitution may be established beside the regular laws. This proposition has never been rescinded; rather, it has been repeatedly reaffirmed by the decisions of the Knesset since 1950. If there is any significance to the term “constitution,” it is that the constitution itself authoritatively determines the relations between it and the other norms of the State’ (ibid., at p. 236).

 

In 1969, the first edition of A. Rubinstein’s seminal work The Constitutional Law of the State of Israel was published. In this book, Dr Rubinstein elaborates on the constituent and legislative authority of the Knesset and on its power, in exercising its constituent authority, to enact a constitution that will limit the regular legislation of the Knesset. The author writes:

 

The Constituent Assembly, after it changed its name to the “First Knesset,” extensively debated the question of the constitution. No doubt was cast on the fact that it was indeed authorized to enact a written, formal constitution. The great dispute revolved around the question of whether it was required to do so... There can therefore be no doubt as to the Knesset’s power to enact a constitution or laws of a constitutional character that stand above regular legislation… The First Knesset dissolved before its time, without adopting a single chapter of the constitution of the State in accordance with the Harrari Decision. The First Knesset’s powers passed to the Second Knesset ... From this it is clear that the powers of the Constituent Assembly passed from the First Knesset to the present Knesset and to every future Knesset... No defect in this continuity can be shown, nor has the power to enact a constitution disappeared; rather it is conferred upon every Knesset’ (ibid., pp. 167-168).

 

The author reiterated this position in all four editions of his work, and the young jurists of the State of Israel were inculcated with this view.

 

34. A significant contribution in the area of Israel’s constitution, the constituent authority of the Knesset and its parliamentary status, was made by Professor Klein (see, inter alia, Klein, “The Constituent Authority in Israel,” 2 Hebrew Univ. L. Rev. (Mishpatim) (1970) 51; Klein, “On the Legal Definition of the Parliamentary Government and Israeli Parliamentarism,” 5 Hebrew Univ. L. Rev. (Mishpatim) (1976) 308; Klein, “A New Era In Israel’s Constitutional Law,” 6 Isr. L. Rev. (1971) 373). The author wrote in 1970:

 

The concept of constituent authority undoubtedly exists in the constitutional law of Israel. Constituent authority was conferred upon the Constituent Assembly, i.e. the First Knesset. The First Knesset did not relinquish this authority, but transferred it to the Second and every subsequent Knesset’ (Klein, “The Constituent Authority in Israel,” II Hebrew Univ. L. Rev. (Mishpatim) (1970) 51, 53).

 

Professor Klinghoffer has expressed a similar view. We have discussed his position, as he expressed it in the Knesset. He reiterated this position in his above-mentioned article as well:

 

The Declaration of Independence did not specify a period of time within which the constitution must be enacted, and the transfer of the powers of the Constituent Assembly to the Second Knesset and every subsequent Knesset was authorized by a special legal arrangement. This is a sort of continuing transfer, which, so long as it remains in place, confers upon the Israeli legislature, as a perpetual inheritance, the authority to enact a constitution’ (Klinghoffer Book on Public Law, Y. Zamir, ed., (1993) at p. 763); the article itself was first published in 1961)).

 

This is also the position of Professor Gavison. In an article devoted to the dispute on the Basic Law: Human Rights, Professor Gavison writes as follows:

 

I accept the analysis suggested by both Klein and Rubinstein that even if the Knesset is not under such a duty, it maintains parallel powers – legislative and constituent – and that it may limit its own legislative powers while exercising its constituent powers. This analysis seems to be the most appropriate one, despite the undesirability of the length of the period for which these two kinds of distinct powers exist, and the fact that the Knesset itself is not keen on distinguishing between the kinds of power which it exercises’ (Gavison, “The Controversy Over Israel’s Bill of Rights,” 15 Israel Yearbook on Human Rights (1985) 118).

 

In a similar spirit, Dr Maoz noted that the Knesset enacted the Basic Laws as to human rights as an exercise of its constituent powers, and thence stems their primary normative status (see Maoz, “Constitutional Law,” Yearbook on Israeli Law, 1992-1993, A. Rosen-Tzvi, ed. (1994) 143). A similar position is expressed in numerous books and articles on this subject (see, e.g. Lahav and Kretzmer; ibid., at p. 158); it undoubtedly reflects the position of the legal community in Israel. It is sufficient to mention that the academic faculty of the Tel Aviv University Law Faculty proposed a draft “Constitution for Israel” to the Knesset. This proposal had great influence on the advancement of the constitutional undertaking in recent years. The proposed “Constitution for Israel” was based on the Knesset’s power to enact a constitution, entrench it and thereby limit the powers of the regular legislature. Note, however, that there were those who believed that there was no room for a fixed constitution. There were those who believed that it was not desirable for the constitution to include a chapter on human rights. President Landau’s position in this regard is well known (Landau, “A Constitution as the Primary Law for the State of Israel,” 27 HaPraklit (1971) 30). But even those voices did not base themselves upon a contention that the Knesset lacked the authority to enact a constitution. Rather, they were of the opinion that it was not wise to invest the Knesset with such power. Again, this short survey is not sufficient to show that only one conclusive position exists. I am aware that the judicial task is an independent one, which derives sustenance from the wisdom of others, but recognizes the personal responsibility of the judge to decide legal questions. The purpose of this survey is to show that the judicial determination, which recognizes the position that the Knesset is endowed with constituent powers, is not arbitrary, deriving from the subjective outlook of the judge, but rather is a reasonable conclusion, premised upon an objective outlook that reflects the basic opinions of the (legal) community in Israel. Another layer is therefore added to our ultimate conclusion that recognition of the constituent authority of the Knesset is the best, most fitting interpretation of Israel’s legal history.

 

(v) Judicial precedent of the Supreme Court

 

35. The Supreme Court recognized the power of the Knesset to entrench the clauses of a Basic Law against regular legislation, as set forth in four decisions rendered before the March 1992 enactment of the Basic Laws as to human rights (see HCJ 98/69 Bergman v. Minister of Finance [15], at p. 693; HCJ 246/81 Derech Eretz Association v. Broadcasting Authority [19], at p. 7; HCJ 141/82 Rubinstein v. Knesset Speaker [20], at p. 141; HCJ 142/89 Laor Movement v. Knesset Speaker [21], at p. 529). At first, the matter was left for further review, but with time it was addressed clearly and explicitly. In the Laor Movement case [21], I noted as follows:

 

A law of the Knesset – whether a “regular” law or a Basic Law – that seeks to change an “entrenched” provision without having been adopted by the necessary majority contradicts the entrenchment provision of the Basic Law. In light of its legal effect, the “entrenchment” provision takes precedence. In this clash between the entrenchment provision and the clause that seeks to change it without meeting the necessary majority requirement, we do not apply the standard rules of construction, according to which a later enacted law invalidates an earlier enacted law. In this clash we apply the principle that gives normative precedence to the entrenched Basic Law’ (HCJ 142/89 [21], supra, at p. 539).

 

Thus the Court has recognized the Knesset’s power to ‘entrench’ the Basic Laws against change or infringement. Otherwise, we cannot explain the invalidation of four “regular” laws for violating the principle of election parity set forth in the Basic Law: The Knesset, when these invalidations stemmed from the failure of those laws to meet a formal requirement (the special majority) set forth in s. 4 of the Basic Law. It is true that in these decisions (except for the Laor Movement case [21]) the Court did not employ the rhetoric of constituent authority. We cannot conclude from these decisions that this specific doctrine was before the Court at that time. However, it is clear that the Court recognized the normative primacy of the entrenched Basic Laws. This primacy is certainly consistent – and as I will explain, only consistent – with the constituent authority of a Knesset empowered to enact a constitution for the State. In the fourth case in this series, I discussed the Knesset’s status as a constituent authority, noting as follows:

 

This “entrenchment” applies in our system, for we recognize the Knesset’s power to function as a constituent authority and to prepare Basic Laws that will constitute the various chapters of the State constitution. It is in this context that  we recognize the power of the Knesset,  acting as a constituent authority, to entrench provisions of a Basic Law against changes – whether by “regular” or Basic Law – that are adopted by a “regular” majority…’ (Laor Movement case [21], at p. 539).

 

36. Since the enactment of Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Liberty, the question of the normative status of these Basic Laws has arisen in an incidental manner in the decisions of the Supreme Court. The Supreme Court has taken the position that these two Basic Laws enjoy constitutional supra-legislative status. Justice D. Levin concluded that this was so in the first decision to address the constitutionality of Basic Law: Freedom of Occupation. Justice Levin wrote:

 

In March 1992 a significant change occurred in Israeli law. Two Basic Laws were adopted and came into force that define and raise to a constitutional level basic civil rights .... These two Basic Laws were debated in the Knesset of Israel, as a constituent authority, and consequently, the revised version of Basic Law: Freedom of Occupation and a revision to Basic Law: Human Dignity and Liberty were enacted, and came into force on March 9, 1994 ... When these two Basic Laws came into being they erected, by their own force and in conjunction with various basic rights that had been scattered here and there throughout our case law, the foundations and walls of the Israeli constitutional edifice. This construction has not, however, been completed, and there remains more to be drafted and enacted so that the constitution may stand in its full glory, radiating its light on the institutions of government and law in Israel. Nonetheless, the work that has been done is the construction of a stable constitutional structure, protected under the aegis of the principle and values anchored in the Declaration of Independence’ (HCJ 726/94 Clal Insurance Co. Ltd v. Minister of Finance [37], at pp. 463-464).

 

Thus, in the first decision to deal with the status of the Basic Laws, the Supreme Court decided – and in this regard the decision was unanimous (by Justices Levin, Strasberg-Cohen and Tal) – that the two Basic Laws on human rights were adopted by the Knesset in the exercise of its constituent authority, and they therefore enjoy constitutional supra-legislative status. In a similar vein, the Justices of this Court stated obiter dicta their position as to the constitutional supra-legislative status of the two new Basic Laws. My colleague Justice D. Levin so opined as to Basic Law: Freedom of Occupation and the right to freedom of occupation when he stated, in another case, as follows:

 

Basic Law: Freedom of Occupation ... endowed this right with formal constitutional recognition and supra-legislative status. It is transformed into a protected basic right and placed on a higher normative level than “regular” legislation or “Israeli” common law…’ (HCJ 239/92 Egged Israeli Transport Cooperation Society v. Mashiah [44], at p. 71).

 

In a similar spirit, my colleague Justice Mazza stated as follows in another case dealing with the Basic Law: Freedom of Occupation:

 

The safeguarding of the right to freedom of occupation in a Basic Law has conferred upon that right supra-legislative status. One of the distinguishing characteristics of this illustrious status ... is in the entrenchment of that right even against the mighty hand of the legislature. Again, it is not enough that a law that limits the right be explicit and unequivocal; rather, in order to effectively limit the freedom of occupation, the law must also meet the requirements of the last part of section 1, that is,. the limitation must be required for a “proper purpose and for the general good”...’ (HCJ 3385/93, 4746/92, G.P.S. Agro Exports Ltd v. Minister of Agriculture [24], at p. 259).

 

In another case, Justice Strasberg-Cohen decided as follows:

 

These laws changed the normative status of freedom of occupation in Israel. There were two primary changes: first, the possibility of invalidating a law that does not meet the criteria of the Basic Law, a possibility that did not previously exist; and second, a change in the relative status of the law, on the one hand, and the basic right on the other. If, prior to the Basic Law, it was possible to limit the basic right by means of a law that did so clearly and explicitly, and if, prior to the Basic Law, the basic right and its limitation were tested in light of the law limiting that right, now the right (for our purposes, freedom of occupation) has been given preferred status above the law that limits it, and requires an analysis into whether the limitation is consistent with the values of the State of Israel, was enacted to serve a proper purpose, and is not more restrictive than necessary’ (HCJ 1225/94 “Bezeq” – The Israeli Telecommunication Company Ltd v. Minister of Communications [45], at p. 679).

 

37. The Justices of the Supreme Court took a similar approach, obiter dicta, as to the constitutional supra-legislative status of Basic Law: Human Dignity and Liberty. In one of the cases, which dealt with the freedom of movement (protected by s. 6 of Basic Law: Human Dignity and Liberty) I noted as follows:

 

This right is invested with constitutional supra-legislative status. A regular law enacted after the effective date of the Basic Law that infringes the basic right and does not meet the requirements of the “limitation clause” (s. 8 of the Basic Law) is an unconstitutional law. The Court is entitled to apply the appropriate remedies. One of those remedies is to declare the law void, and set forth the effective date of the invalidity (retroactive, active or prospective)’ (CrimApp 6654/93 Binkin v. State of Israel [46], at p. 293).

 

In another case I noted:

 

With the enactment of the Basic Law, a significant change occurred in Israel. The normative status of a number of basic human rights has changed. They have become part of the State constitution. They have been accorded constitutional supra-legislative status’ (CrimApp 537/95 Ganimat v. State of Israel [38], at p. 410).

 

In one of the cases, Justice Or analyzed the principle of equality. He determined that this principle may be safeguarded by Basic Law: Human Dignity and Liberty. Therefore, in his opinion, the following conclusion is required:

Such a safeguard signifies the elevation of the principle of equality to a normative constitutional supra-legislative level’ (HCJ 5394/92 Huppert v. Yad Vashem Holocaust Martyrs and Heroes Memorial Authority [47], at p. 362).

 

It must be emphasized that most of the decisions discuss the constitutional supra-legislative status of the Basic Laws. There is no express reference to the Knesset’s constituent power. There was no need for such an express reference, since this question was not at issue. I do not contend, therefore, that one may conclude from these decisions that the Court explicitly adopted the doctrine of constituent authority (aside from the decision in the Laor Movement case [21], and the unanimous decision in the case of Clal Insurance Co. Ltd [37]). My contention is that the Court recognized the normative supremacy of the Basic Laws, and their constitutional supra-legislative status. In so doing, the Court did not adopt those constructions that see the Basic Laws as occupying the same normative level as regular legislation.

 

(vi) The Knesset’s constituent authority: conclusions

 

38. The socio-historical journey is at an end. This journey was vital. Constitutionality and the constitution are not merely formal documents. They are not mere law. They are the product of the national experience. They are society and culture. A constitution is indeed a reflection of the national experience. The words of Justice Agranat still resonate:

 

For it is a well known axiom that a nation’s law must be viewed through the lens of its national experience’ (HCJ 73/53 Kol HaAm Co. Ltd v. Minister of Interior [4], supra, at p. 884).

 

Our system of national life, our national experience, from the establishment of the State until today, is that the Knesset is perceived by our national consciousness as the body authorized to enact a constitution for Israel. That consciousness originated before the establishment of the State and the preparations for framing a constitution. That consciousness was crystallized in the Declaration of Independence. It took on real form in the elections for the Constituent Assembly. It was consolidated in the social-legal understanding that the Knesset is endowed with constituent authority and is empowered to enact a constitution for Israel. The rhetoric of constituent authority and constituent power was particularly strong during the first years following the establishment of the State. This rhetoric weakened with the passage of time. That is natural. Nonetheless, the basic understanding that the Knesset is endowed not only with regular legislative authority but also with constituent authority accompanied the Knesset from its inception. This is evidenced by the repeated references to the Harrari Decision. The renewed rhetorical reference to the Knesset as endowed with constituent authority in the context of the enactment of the Basic Law: Freedom of Occupation in 1994 shows this as well. Indeed, the view that the Knesset is authorized to enact a constitution is deeply embedded in the social and legal consciousness of Israeli society. This is part of our political culture. On the basis of this view, we, the judges of Israel are entitled to declare today that according to the rule of recognition of the State of Israel, the Knesset is endowed with legislative and constituent authority, and that the Knesset may, in exercising its constituent authority, limit the exercise of its legislative authority.

 

In truth, the rule of recognition at the outset of the Second Knesset might have been different had the Supreme Court determined that constitutional continuity had been severed. But this did not happen. In my opinion this would not have happened even had the question arisen before the Court at that time. In any event, today’s socio-legal reality enables the Supreme Court – in whose hands rests consolidation of the rule of recognition (see H.L.A. Hart, The Concept of Law, at pp. 147-154 (2nd ed., 1994)) – to identify and declare that our Knesset is endowed with both constituent and legislative authority; that it wears ‘two hats’; that in enacting the constitution it may limit its regular legislative power; that its constituent actions stand above its legislative actions. Of course, while the Knesset’s lawmaking power (its “legislative hat”) is continuous and everlasting, its power to enact a constitution (its “constituent hat”) is temporary and will terminate when the Knesset, as a constituent authority, determines that the constitutional undertaking has been completed. The constitution itself will set forth the means by which it may be revised and amended. This conclusion – the product of the rule of recognition – is also the best interpretation of our socio-legal history from the establishment of the State until today.

 

39. The common denominator of these three models is that the constituent authority of the Knesset always rests with the people. A constitution is not a government act that bestows a constitution upon the people. A constitution is an act by the people that creates government. It is the people that determines – according to the social philosophy developed over the course of its history – who exercises the highest authority of the State, and its rule of recognition. The Court gives expression to this social determination. The Court is the faithful interpreter of the people’s will as expressed in the constitution. The Court attempts to give the best possible interpretation of the totality of the national experience. The existence of a constitution is not a logical matter but a social phenomenon. The Court interprets the ‘social facts’ and infers from them the constituent power of the Knesset. This interpretation is not the product of intellectual construction. It is an expression of the social reality. It reflects actual experience. It is an expression of the moral and political foundation upon which the system is based. It is the product of the historical, political, social and legal history of the system. It is the consequence of the social contract based upon the communal consensus in Israel (the Laor Movement case [21], supra, at p. 554). The Court attempts to give the best interpretation of the totality of the national experience. At times, the constituent authority remains in the hands of the people itself, which then acts directly and enacts a constitution by referendum. In most cases the nation delegates constituent authority to a governing body. At times this is a special governing body. Generally it is an existing governing body, which is also the body authorized to enact laws. That is the case in Israel.

 

 

d) Review and critique of Justice Cheshin’s position

 

40. My colleague Justice Cheshin rejects the Knesset’s constituent authority. In his view, a Basic Law is “regular” legislation to which the label “Basic Law” has been appended. The Knesset may not limit itself. The Knesset is not omnipotent, inasmuch as it is subject, inter alia, to the will of the majority. A statutory clause (including that set forth in a Basic Law) providing for a formal majority “limitation” is not binding, unless the required majority is 61 members of Knesset (which is not a true limitation). A statutory clause providing for a substantive limitation in regard to the content of the provision (such as that appearing in the limitation clause) may be changed by later legislation despite noncompliance with the limitation requirement, as long as the subsequent law expressly provides for the change. Essentially, this is the classic English position, which represents the accepted view of the Westminsterian model as it is understood today in England. The legal construction that my colleague proposes in requiring an express change was raised many years ago by Professor Klein, and I referred to it myself years ago. My colleague’s position that, in principle, limitation is not possible is the antithesis of the view held by my colleague President Shamgar, according to whom limitation is possible. My view – based upon the Knesset’s constituent authority – falls in the “middle.” It is opposed to Justice Cheshin’s position on entrenchment and self-limitation in the Basic Laws. We do share basic principles – which I would like to reserve for future review – as to the effect of limitation clauses in regular laws, but that is not now the issue before us.

 

41. I will state at the outset that I disagree with the position held by my colleague Justice Cheshin. I agree with the view of my colleague Justice Shamgar in this matter. Indeed, consider the result: there is no constitution and the Basic Laws are but regular laws; the constitutional undertaking of more than forty years has been, so far, an unsuccessful experiment; the provisions of s. 9A of Basic Law: The Knesset, according to which the Knesset may extend its term only by a law enacted by a majority of eighty members of Knesset, are invalid; the provisions of s. 45 of Basic Law: The Knesset (according to which ss. 9A, 44 and 45 may be amended only by a majority of eighty members of Knesset), are invalid; the limiting provisions included in all drafts of Basic Law: Legislation based upon the principle that a Basic Law may not be enacted or amended unless by a majority of two-thirds of the Knesset, will not be constitutional if adopted; the clauses set forth in the Basic Laws requiring a Knesset majority – which, in the view of my colleague Justice Cheshin, are lawful – are imperiled, for it seems to me according to his underlying premise they should be invalidated. If we wish to enact a constitution and Basic Laws, we will have to start again from the beginning. And, apparently, even such a beginning is not at all simple. Certainly we will not aspire to ‘blood and fire and pillars of smoke’ [Joel 3:3]. If we wish to adopt a constitution by non-violent means, we are faced with considerable difficulty. The Knesset would not be empowered to enact a law establishing a constituent assembly. Even presenting a proposed constitution to be adopted by the Knesset (or a body established by it) for a national referendum would pose problems that could not be easily surmounted. Indeed, my colleague places us in the same position in which England is found today – without our being part of the European community and without our being subject to the European Convention on Human Rights – and he places before our legal system the same difficulties facing England today. In my opinion all this is unnecessary, for our history is unlike England’s. Our Knesset has constituent authority, by means of which it may achieve constitutional arrangements not easily realizable in England. I say this not because I desire a constitution, just as my colleague does not take his position because he desires that we not have a constitution. I take this position because it accords with my best professional understanding; it is based upon my best efforts to be objective in light of the constitutional structure and contemporary constitutional understanding. Indeed, I would consider a Knesset decision to discontinue the constitutional undertaking as legitimate, imbued with the same force as a decision to continue the enterprise. However, as long as the Knesset has not decided to abandon the constitutional undertaking, the Court must give constitutional force to that enterprise without regard to the judge’s personal opinion.

 

42. Accordingly, the most important question remains whether the Knesset is endowed with constituent authority. My colleague’s claim rests upon the view that the Constituent Assembly’s constituent authority expired with the dissolution of the First Knesset. Most of his contentions have been made before. Professor Nemer, Dr Likhovsky, Mr Shefter and Mr Hornstein raised these arguments in the nineteen-fifties and sixties. My colleague returns to them. Some of these claims are stronger, some less so. As I mentioned in my opinion, had these questions arisen at the time that the Second Knesset convened (in 1951) they would have posed a problem that was “by no means simple.” I added that even then these problems could have been surmounted. Certainly these claims have weakened over the years. With the current reinforcement of the constitutional enterprise they lack real force.

 

43. I have addressed most of my colleague’s claims in the course of my opinion. I will therefore not repeat my answers but will address a number of points that merit further discussion.

(a) My colleague stresses that the First Knesset – which everyone agrees was empowered to adopt a constitution for Israel – was not authorized to transfer that power to the Second Knesset, and even if the First Knesset was so empowered, it did not intend to effect such a transfer. My simple answer is that the principle of transfer or agency, according to which an agent is not a principal does not apply here. The Knesset was given the power to enact a constitution by means of the basic norm and according to the basic understanding of the Israeli community. This power was given to every Knesset. The First Knesset did not pass powers to the Second Knesset, just as the Twelfth Knesset did not pass legislative power to the Thirteenth Knesset. A later Knesset is not the agent of an earlier Knesset. The Knesset is the central organ of the State, and according to our constitutional structure it is endowed with both constituent and legislative authority. In any event, even according to my colleague’s line of thinking, I have sought to show that the First Knesset intended (subjectively) to see the Second Knesset as its heir, and that intention was successfully implemented.

 

(b) My colleague has returned again to the old claims that the passage of constituent authority from the First to the Second Knesset was effected by regular laws and not by Basic Laws. This question does not arise as to the Transition Law, 5709-1949, which was enacted before the Harrari Decision. Personally, I see in this a constitutional provision, as it was indeed dubbed (“minor constitution”). Professor Yadin noted that the Transition Law was an ‘act of basic legislation in the sphere of the national constitution’ (Sefer Yadin, at p. 90). As to the Transition to the Second Knesset Law, it was enacted after the Harrari Decision, and should have been enacted as a Basic Law. It is unfortunate that this was not done. Does the entire constitutional structure therefore collapse? I have already noted that in my opinion this law was unnecessary; it was declarative in nature, emphasizing the passage from transitional to permanent status.

 

(c) My colleague Justice Cheshin cites as a weakness of the doctrine of constituent authority that it must distinguish between constituent and legislative acts, and that it is likely to require a determination as to whether certain provisions set forth in the Basic Law deviate from constituent authority. My answer is threefold. First, according to the doctrine of constituent authority the distinction between constituent and legislative acts is straightforward and clear, and is subject to a simple formal test. In this my position is similar to Justice Cheshin’s position, which is also subject to a simple test calling for a majority of 61 members of Knesset and no more than that. Second, indeed it may be necessary to test the constitutionality of the use of the term ‘Basic Law.’ I sought to leave this matter for further consideration and I maintain this position. I will note, however, that it is well accepted for courts to test the constitutionality of amendments. More than one such amendment has been invalidated as unconstitutional, and this has been not only for ‘formal’ reasons (such as a failure to meet majority requirements) but for substantive reasons as well (see the opinion of the Supreme Court of India in the case of Kesavande v. State of Kerala [113]). Consider, in this regard, the following words of the Constitutional Court of Germany:

 

Laws are not constitutional merely because they have been passed in conformity with procedural provisions... They must be substantively compatible with the highest values of a free and democratic order, i.e. the constitutional order of values, and must also conform to unwritten fundamental constitutional principles as well as the fundamental decisions of the Basic Law’ (6 BverfGE 32 [109]).

 

The literature on this matter is plentiful (see Barak, Parshanut BeMishpat, vol. 3, (1994), at p. 566, and also infra). Third, the need for judicial review under these circumstances is not unusual. It seems to me that even my colleague Justice Cheshin applies judicial review in similar circumstances. Thus, for example, in his view, the Constituent Assembly (the First Knesset) was unsuccessful in its attempt to transfer authority to the Second Knesset. Is this not an example of the Court setting constitutional limits? My colleague Justice Cheshin determines that the Knesset’s enactment of a law (even a Basic Law) extending its term beyond four years would be unconstitutional. Is this not a case in which the Court determines the boundaries of constituent authority? It is worth noting as well the words of my colleague President Shamgar, who noted that ‘there should be no doubt as to the existence of judicial review’ even as to the constitutionality of the constitutional legislation itself (see paragraph 46 of his opinion).

 

44. My conclusion is therefore that my colleague Justice Cheshin has presented the old arguments (some better, some less so) that were raised in the nineteen-fifties and sixties. All these contentions have been answered. The answers were sufficient when they were made. They are certainly sufficient today. As I have attempted to show, the Knesset’s constituent authority does not come to it merely by inheritance from the original Constituent Assembly (according to Kelsen’s view). I have reiterated that the recognition of the Knesset’s constituent authority reflects the general rule of recognition of Israeli law today (according to Hart’s view). This is the best interpretation of the entirety of the legal and national history of Israel, as it is understood today (according to Dworkin’s view). Indeed, regardless of the legal climate at the time the Constituent Assembly was dissolved, even had there been no Constituent Assembly at all, the question remains – what is the rule of recognition of Israeli law today? Does today’s Israeli law recognize the Knesset’s authority to endow Israel with a constitution? I have answered this question affirmatively. To support my position, I have presented the Knesset’s understanding of itself; the party platforms from various elections, which manifest the subjects on which the nation gave its opinion in those elections; the words of scholars and academics reflecting the professional consensus; the opinions of the Supreme Court; and the Knesset’s response to them. All these together – with no possibility of viewing any individual element as providing the answer – provide a “factual basis” for my legal conclusion that today, as in the past, the Knesset’s power to endow Israel with a constitution is recognized. My conclusion as to the Knesset’s authority to enact a constitution is based upon a broad “factual basis.” It is the result of the constitutional history, the Knesset’s understanding of itself, the basic understanding of scholars and authors, the understanding of the electorate that voted in the various elections, the decisions and dicta of the judges and the response of the Knesset. This is where my criticism of Justice Cheshin’s position lies. His position does not accord with the understanding of today’s Israeli community. It is not the best explanation for the entirety of the social and legal history of the State of Israel. It does not grapple with the constitutional problem.

 

45. Professor Dworkin’s position is germane. He addresses the question of whether the British Parliament is empowered to adopt a bill of human rights that would limit the Parliament’s legislative power and prohibit Parliamentary amendment of the bill of rights, except by special majority. Professor Dworkin considers whether the Parliament’s decision is in itself sufficient to create entrenchment and self-limitation, and he concludes that the answer to this question is no. He notes that the principle of parliamentary supremacy:

[D]oes not owe its authority to any parliamentary decision, because it would beg the question for Parliament to decide that its own powers are unlimited.’

 

He continues:

 

British lawyers say that Parliament is an absolute sovereign because that seems (for most of them intuitively and unreflectively) the best interpretation of British legal history, practice and tradition. But legal history and practice can change with great speed’ (R. Dworkin, A Bill of Rights for Britain (1990), at pp. 26-27).

 

And I ask: when a Justice of the Supreme Court regards our legal history, its ways and traditions, as it appears before us today – against the background of the Declaration of Independence, the convening of the Constituent Assembly, the Harrari Decision, the election campaigns in which the parties reiterated their aim to enact a constitution for Israel, the enactment of twelve Basic Laws including entrenchment and limitation clauses, the case law and the Knesset’s response thereto, and the position of the legal community – does this not demand a determination that today the Knesset is endowed with constituent authority; that today, alongside its legislative authority, lies the Knesset’s authority to enact a constitution? Is this not the best interpretation of our national history? Is this not the best explanation for our “system of national life” (in the words of Justice Agranat in HCJ 87/53 Kol HaAm Co. Ltd v. Minister of Interior [4], supra, at p. 884)?

 

46. We will now consider the question of the Knesset’s power to limit its authority to amend the Basic Laws – whether the best explanation for this arrangement, against the background of our entire constitutional history is my colleague’s explanation as to the nature of majority and the method of counting abstentions, or my explanation that this power is the expression of the Knesset’s constituent authority. My colleague seeks to address this question from within the Knesset’s enactments and its internal rules. In my view we cannot solve this problem without looking outside the Knesset. This problem may be solved according to our present understanding of the entirety of Israel’s legal history. The best explanation for this understanding is that the Knesset sought to limit its legislative power as to constitutional matters; that it saw itself as functioning within the scope of the constitutional undertaking; that it saw itself as preparing a constitution for Israel. We will consider as well the entrenchment provisions of the Basic Law: The Knesset. In light of our legal and social history, is the best explanation for this requirement that the Knesset was thereby attempting to count abstentions and non-participating votes as “votes against,” out of a desire to provide for a “regular” majority? Perhaps the better explanation is that this was an attempt to create a constitutional supra-legislative norm, intended to ensure the stability of the system. Consider Basic Law: Human Dignity and Liberty. Is the best explanation for this Basic Law that the Knesset sought to prevent infringement of those basic rights by a later Knesset without consciously and expressly setting out its intention to do so (according to the position of my colleague Justice Cheshin)? Perhaps the better explanation is that the Knesset sought to prevent infringement of those basic rights by a later Knesset not fulfilling the requirements of the entrenchment provision, thereby preventing a later Knesset – one that explicitly announces its intention to deviate from the Basic Law – from achieving its goal? Is not this explanation – my explanation – the only one that reconciles the provisions of Basic Law: Human Dignity and Liberty with the provisions of Basic Law: Freedom of Occupation, which includes an express instruction – intended to achieve my colleague’s interpretation in the context of this law – regarding the override clause, when such a provision is absent from the Basic Law: Human Dignity and Liberty? Is the best explanation for our legal history that the use of the term “Basic Law” is merely formal, without any underlying significance? Or is the best explanation for use of the term ‘Basic Law’ that the matter is substantive in character, and reflects the preeminent normative status of the Basic Law? Consider s. 1A of Basic Law: Human Dignity and Liberty, which provides that ‘this Basic Law’ – this and not an item of regular legislation – ‘is intended to protect Human Dignity and Liberty, in order to safeguard in a Basic Law’ – in a Basic Law and not in regular legislation – ‘the values of the State of Israel as a Jewish and democratic state.’ Is it not artificial to consider the term ‘Basic Law’ in this section as merely formal? Should it not be seen as the expression of a more profound legal and social outlook under which the Knesset is engaged in preparation of a constitution, in the context of which it seeks to protect human rights in order to safeguard the values of the State of Israel as a Jewish and democratic state? It should be noted that I do not claim that the issue is “black-and-white.” I am well aware of the contentions of the various Members of Knesset that were raised against the constitutional enterprise; I am aware of the authors who argued against it. But when a judge must ask himself – while taking into account the entire picture – what is the outlook of Israeli society today, against the background of the multi-faceted constitutional enterprise undertaken since the establishment of the State, and in light of the two latest Basic Laws and the reactions to them, my answer is that the Israeli Knesset is endowed with constituent authority. Indeed the judge’s task is to give our legal and social history the explanation that best accords with the legal and social data.

 

47. Running through Justice Cheshin’s opinion is his determination that recognizing the Knesset’s constituent authority violates Israeli democracy. In his view, ‘it is unthinkable that the representatives of a majority of the nation would take a position, but be prevented from achieving their aim of amending a Basic Law by our having erected a legal construct of dual authorities’ (paragraph 69). ‘It seems to me that obstructing the majority is a patently anti-democratic procedure’ (paragraph 69). “True” democracy, in the view of my colleague, Justice Cheshin, is democracy in which all decisions are adopted by a majority (an absolute majority) of the Members of Knesset. ‘A determination that a statute cannot be voided, amended or infringed except by a majority of more than 61 votes ... is a patently anti-democratic determination’ (paragraph 97). ‘When majority rule is removed, the spirit of democracy is extinguished’ (paragraph 101). ‘A statute enacted by the Knesset is the law of Israel, as long as it does not injure the heart of democracy, the principle of majority rule’ (ibid.). In my opinion this is a one-sided and fragmented approach to democracy. I discuss this at greater length in that section of my opinion dealing with the basis for the judicial review of constitutionality. My basic position is that the Knesset’s legislative authority to amend its laws should not prima facie be limited. Such limitation violates the principle of majority rule, without which there is no democracy. Such limitation enables the past to reign over the present on day-to-day matters. Such limitation enables the present majority, which chose today’s Knesset, to limit a future majority, which will choose the future Knesset. One generation may thereby dictate the day-to-day behavior of another generation. In the absence of a social agreement expressed in the implicit rules of the system, such a result should not be allowed. Up to this point, Justice Cheshin and I are of the same opinion. But, at the same time, my position is that “true” democracy recognizes the power of the constitution – fruit of the constituent authority – to entrench the fundamental human rights and the basic values of the system against the power of the majority. Such a limitation of majority rule does not violate democracy but constitutes its full realization (as discussed above). In this I join my colleague President Shamgar, and with him disagree with the opinion of my colleague Justice Cheshin. Indeed we are adjudicating the matter of the constitution as well as constitutional human rights. In this context, endowing the majority with the power to infringe the rights of the minority is an undemocratic act. Protecting individual rights, minority rights and the fundamental values of the legal structure against the power of the majority is a democratic act. Justice Jackson noted this as follows:

 

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty and property, to free speech, a free press, freedom of worship and assembly and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections’ (West Virginia State Board of Education v. Barnette [92], at p. 638).
 

Indeed, “true” democracy cannot exist without limitation of the power of the majority so as to protect the values of the State of Israel as a Jewish and democratic state, and so as to protect the fundamental values, of which human rights are primary. Democracy of the majority alone, unaccompanied by a democracy of values is formal, “statistical” democracy. True democracy limits the power of the majority in order to protect the values of society, ‘the values of the State of Israel as a Jewish and democratic state,’ and the ‘recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free’ (s. 1 of the Basic Law). Of course, it is possible to think otherwise. It is possible to be satisfied with “formal” democracy. But the State of Israel chose differently. Since the Declaration of Independence and up to the present day we have chosen the constitutional path. We sought to endow ourselves with a constitution that would limit the power of the majority in order to fulfill the fundamental values of the State of Israel as a Jewish and democratic state. This choice was not made by judges. It was made by the nation. Once this choice is made, the judges are required to uphold it regardless of their own personal opinions (see B. Ackerman, We The People: Foundations 272 (1991); J. Rawls, A Theory of Justice 228 (1983)). The fundamental values and basic human rights are so deep and so important that the courts of various countries are prepared – without any constitutional text – to negate parliamentary power to infringe those values. Indeed, in a number of common-law legal systems the recognition is slowly developing that certain fundamental values cannot be infringed by the legislature, even in the absence of a written constitution. The bitter experience of Nazi Germany, inter alia, has contributed to the understanding of this issue (see my opinion in the Laor Movement case [21]; Tal, “The All-Powerful Legislature: Indeed?” 10 Tel-Aviv University Law Review (Iyyunei Mishpat) (1984) 361; Woolf, Droit Public - English Style Public Law (1995), at p. 57; and P. Joseph, Constitutional and Administrative Law in New Zealand (1993), at pp. 444, 454). The matter has progressed so far that, at times, courts are prepared to negate the effect of a baseless constitution (see H.H. Cohn, “Faithful Interpretation – A Third Conclusion,” 7 Hebrew Univ. L. Rev. (Mishpatim) (1976) 5; EA 1/65 Yardor v. Chairman of the Central Elections Committee for the Sixth Knesset [48]). We need not go so far. We have a constitutional text. We have a national history of recognizing fundamental values that stand above regular legislation. All that is left is judicial recognition that the law is constitutional. We grant this recognition today.

 

48. My colleague Justice Cheshin reiterates that the nation was not consulted, ‘and we did not ask the nation’ (paragraph 67). My colleague asks again, ‘And where was the nation? Is it not fitting that we seek its opinion? On the contrary, we should turn to the nation and ask its opinion’ (paragraph 63). Indeed, in a democratic state sovereignty rests in the hands of the people. The Knesset does not have sovereignty; neither does the government, nor the courts. The nation has sovereignty. The entire social and legal structure is based upon this principle. The constitution and the Basic Laws arise from the nation and depend upon the nation, and the nation may change them. The Knesset’s constituent authority stems from the nation, and is recognized by the nation; the Knesset does not exercise this authority behind the back of the nation. My opinion is but an attempt to declare that the idea of the constitution and its implementation are not the province of ‘jurists and a few other high-brows – two or three at most’ (paragraph 71), but rather that this idea is a reflection of the national consciousness; that the idea of the constitution and its preparation began with the Declaration of Independence, which was borne on the nation’s shoulders; that it took form with the elections for the Constituent Assembly; that the idea of the constitution and its preparation did not evaporate with the dissolution of the original Constituent Assembly, but continued on in the Second Knesset. The party platforms, on the basis of which the people voted in all of the elections, attest that the idea of the constitution and its preparation continued and developed in every Knesset, and that in accordance with this idea, the Knesset enacted twelve Basic Laws; that in the various elections the nation was told that the parties sought a constitution for Israel; that based upon these declarations the nation went to the polls; that there were debates in the Knesset and among the public as to the content of the constitution and the need to continue its preparation. All these together enable the Court to declare today that in Israel the nation’s basic understanding is that the Knesset is endowed with the authority to enact a constitution for Israel. Indeed, many do not know what the ‘Constituent Assembly’ is, nor are they aware of the significance of constituent authority. But the vast majority of the members of the public know that our Knesset is the institution from which the constitution will derive and from which it has derived.

 

49. It is true that no special appeal was made to the public to approve the text of the Basic Laws, as it developed in the course of the Knesset debates over the years. But such an appeal was not necessary. It may be desirable, but it is not indispensable. Direct appeal to the nation is one method of adopting a constitution, and perhaps the most desirable. But this is not the only method and it involves considerable difficulty. The constitutional history of many nations recognizes constitutions that derived authority from the nation but were not presented for direct national approval. Every nation has its history; every nation has its constitutional development. Our political and legal culture is not based upon a special appeal to the nation by means of a referendum. No referendum has taken place in the past. Our political and legal culture is not built upon “direct” democracy, but upon “representative” democracy.

Our political and legal culture also maintains that the appeal to the nation takes place in the context of the elections for the Knesset. Such elections took place in Israel, and the issues of the constitution and the Basic Laws were on the agenda. The nation was asked; nothing was done without its knowledge. Indeed, this did occur in the elections for the First Knesset – the Constituent Assembly. Preparation of the constitution was but one of the many subjects addressed in those elections. This does not negate the First Knesset’s constituent authority. The nation went to the polls many times. Every time the issue of the constitution and the Basic Laws appeared on the national agenda. The nation had its say in all of the elections, with different levels of intensity, according to the subjects that were then on the national agenda. Never was the constitutional ember extinguished. I do not see a substantive difference – from the perspective of the rule of recognition of today’s Israeli legal system – between the elections for the Constituent Assembly, and all other elections. In the elections for the Constituent Assembly it was clear that the subject was election of an entity with dual authority, legislative and constituent. This was the case in the other elections as well. I agree, of course, that in the first elections constituent authority was emphasized. This is appropriate, and in this regard, there is, of course, a difference between the first and subsequent elections. But I do not think that this difference is so significant as to conclude that the first elections bestowed constituent authority upon the body elected while subsequent elections did not.

 

Consider the matter of the Basic Laws on human rights. Can it seriously be claimed that they were adopted without the nation’s participation? The Knesset has concerned itself with the question of human rights for more than thirty years. Beginning with Professor Klinghoffer’s 1962 proposal, the Knesset and the Israeli public have reckoned with the question of human rights. Problems of religion and state have been debated at length. The status of Israel as a Jewish state and as a democratic state have been debated and tested. The Twelfth Knesset adopted Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Liberty. Thereafter, elections for the Thirteenth Knesset took place. The issue of the Basic Laws was raised in the party platforms. The Thirteenth Knesset was elected and enacted a new Basic Law: Freedom of Occupation.

 

Indeed, the public debates did not take place only in the Knesset. Broad segments of the public expressed their opinions as to the “constitutional revolution.” The issue was discussed in primary schools and high schools. The issue penetrated the public consciousness. All of these factors have constitutional significance. A constitution is not merely a legal document. A constitution expresses the national experience. A special appeal to the nation is only one of the many ways in which such a program for national life can be developed. The nation was asked and the nation answered that it desires a constitution, and that it desires constitutional human rights. Indeed, the primary dispute in the nation – and such a dispute exists – is not as to constituent authority but as to the content of the constitution. Of course this matter requires national consensus. This agreement is expressed in the enactment of the Basic Laws. The Court must give effect to this agreement. Again, I do not claim that constitutional development in Israel is ideal. The constitutional enterprise could have been arranged differently. A “national seminar” on the content and details of the constitution would have been appropriate. Increased public awareness of the public debate would have been appropriate as well. But that is not the question before us. Our task today is not to plan the constitutional enterprise in advance. We are dealing with an analysis of the constitutional enterprise in retrospect. It cannot be said that the nation did not participate in the constitutional enterprise, and that the Members of Knesset acted behind the nation’s back. Everything was done openly, in the public eye. The public expressed its opinion in the elections, and chose the parties that it desired, according to many factors, including party positions on the constitution. Now, the Court must give constitutional effect to the constitution. That is what we are doing today.

 

e) The Knesset’s authority to enact a constitution – Summary

 

50. I have come to the conclusion that the Knesset is authorized to provide Israel with a constitution; that it is empowered to ‘entrench’ the clauses of the constitution (whether by substantive or formal entrenchment). This authority is granted to the Knesset because it is vested with constituent as well as legislative authority. I have noted the many difficulties that stand in the way of any other construction. Fortunately, there is no need to deal with these other constructions in light of the explanation that the Knesset is endowed with both constituent and legislative authority. Indeed it may be said of constituent authority that if it had not been established as a constitutional fact it would have had to be invented, as a constitutional construct, since it provides the best explanation for the legal history of Israel. However, in our case, this doctrine is established and it is reflected in our constitutional history. There is no need to invent it. It expresses our social contract since the establishment of the State until today. Without it, constitutional continuity would be severed, and the effect of all the entrenched Basic Laws creating superior norms would be called into question. Their legal status would be diminished and the constitutional enterprise would lose its operative significance. Human rights in Israel would not be elevated to constitutional supra-legislative status. The expectations of generations for a constitution and supra-legislative human rights would be frustrated. All hope for a constitution would be lost. I am aware of the difficulties that underlie the doctrine of constituent authority. Nonetheless, these difficulties are not so insurmountable as to overturn the doctrine.

 

51. The doctrine of constituent authority affords significant advantages. First and foremost, it reflects the governmental history, the social contract and the basic viewpoints of the Israeli community. Second, it provides an appropriate instrument for accomplishing the task. The doctrine does not deal with the Knesset’s general power to limit itself. It does not take a position as to the Knesset’s ability to limit itself as to matters that are not constitutional. It treats only of the process of creating a constitution and this process alone, and it provides an answer that justifies this activity. It provides an Archimedean foothold, outside of the constitution that enables its enactment.  It makes it possible to turn to the people – if such is their will – in order to strengthen the ties between the people and its constitution that have weakened in past years. Third, it accords with the constitutional experience of most countries throughout the world, which have followed a similar path in preparing their constitutions. It does not transform a “regular” law into a “special” or “elevated” or “important” or “extraordinary” or “exalted” law. It does not deal with fine distinctions as to the scope of the limitation, the essence of the ‘regular’ or ‘special’ majority, or the status of abstentions. It takes the high road in determining that a Basic Law is not a “law” at all but rather a constitution. As a result, the way is paved for a systematic and orderly development of the body of constitutional rules connected with the constitution. It facilitates Israel’s entry into the democratic constitutional community. Finally, it expresses the centrality of the Knesset in the fabric of Israeli democracy. The Knesset is endowed with constituent authority. It is true that in exercising its legislative authority the Knesset is subject to limitations that arise from the basic perceptions of the community as safeguarded in the constitution and the Basic Laws, which represent our national will. Nonetheless, when the Knesset exercises its constituent authority, it is free to enact a constitution for Israel. The Knesset, endowed with constituent authority, was entrusted by the Israeli community with the fate of the constitution.

 

II) Basic Laws and regular legislation

a) Continuation of the constitutional enterprise and its problems

 

52. The Knesset is empowered to enact a constitution. This authority was granted to the Knesset with the establishment of the State. At that time it accompanied a revolutionary process of national emancipation. The original authority did not immediately come into effect. It was already clear to the Provisional Council of State that preparation of the constitution would be protracted. The Harrari Decision provided that the constitution would be adopted in stages. Because of the political situation, the constitution was at times enacted not only ‘chapter by chapter’ but ‘atom by atom’ (see Karp, “The Basic Law: Human Dignity and Liberty – A Biography of Power Struggles,” I Mishpat uMimshal (1993), at p. 323). As a result, the constitution was adopted without any connection to a particular event. As in many countries – such as Canada, Sweden, and Spain – our constitution is the product of natural social development. It results from a continuing ‘evolution,’ not a one-time ‘revolution’ (see B. Ackerman, The Future of Liberal Revolution (1992), at p. 47; E. McWhinney, Constitution Making (1981), at p. 13; R.R. Ludwikowski and W.R. Fox, The Beginning of the Constitutional Era: A Bicentennial Comparative Analysis of the First Modem Constitutions (1993), at p. 194). Moreover, preparation of the Israeli constitution took place over an extended period without parallel in the constitutional history of other countries. Constitutional preparation commonly continues for many years. It is unusual for the constitutional enterprise to continue for more than forty years. For a variety of political and social reasons this has occurred in Israel. At times, the political will to establish the constitutional authority was lacking. At other times, the matter was prevented by circumstances. Indeed, we are different from other nations, even in the enactment of our constitution.

53. This prolonged constitutional enterprise is accompanied by a number of difficult problems. The various Basic Laws differ in the generality of their language. A small number of them contain ‘limitation’ provisions, limiting the process by which the laws may be amended; most are silent as to amendment procedures. Some Basic Laws include ‘entrenchment’ provisions, dealing with the power of subsequent laws to infringe the arrangements set out in the Basic Laws. Most are silent on this matter as well. This normative reality gives rise to difficulties of interpretation and to a lack of clarity as to the constitutional scheme. There is no alternative, therefore, but to clarify the constitutional picture. Without such elucidation, we cannot understand the status and scope of the Basic Laws in general, and Basic Law: Human Dignity and Liberty in particular.

 

b) The normative order

 

54. The Knesset is endowed with constituent authority. By that authority the Knesset enacted a constitution for Israel. It did so chapter by chapter in accordance with the Harrari Decision. Each of the Basic Laws constitutes a chapter in the constitution of the State of Israel. Each chapter stands at the head of the normative pyramid (cf. B. Akzin, The Doctrine of Governments, vol. 1 (1963), at p. 120). Thus, the State of Israel has a constitution – the Basic Laws. Below the constitution stand our statutes, the product of the Knesset’s legislative authority. Beneath the statutes stands secondary legislation, the product of authority conferred by statute. The status of each norm in the normative pyramid is determined by the nature of the authority by which it is created, which, in turn, is grounded in the pyramid of institutions. Limitation does not create normative supremacy. Even when a statute can limit itself it cannot elevate itself (see Salmon, Jurisprudence, 12th ed. (1966), at pp. 85, 87). Normative supremacy reflecting the constitutional nature of the norm derives only from the existence of constituent authority. A constitutional democracy is, by its nature, ‘dualistic’: the constitution is created by the nation, whether directly (such as by referendum) or indirectly, by granting constituent authority to a governmental body (such as a special constituent assembly or an established legislative body). Statute is created by the nation, acting through the legislative authority. Constituent authority is supreme and ranks above legislative authority. It does not constitute mere self-limitation of the legislative authority (Rawls, Political Liberalism (1993), at p. 223). In Israel, constituent authority is given to the Knesset. This authority exists alongside the Knesset’s legislative authority. This dual authority in the hands of the same body raises a number of questions that must be answered.

 

c) The use of constituent authority is effected by means of the Basic Laws

 

55. The Knesset is empowered to enact a constitution for the State. How does it do this? When does the norm created by the Knesset have constitutional status and when can it be said that the norm is a ‘regular’ law? In my opinion the answer is that the Knesset uses its constituent authority (committing a “constitutional act,” in the language of Rubinstein, ibid., at p. 451) when it gives external expression in the name of the norm, denoting it a “Basic Law” (without specifying the year of enactment). This formal standard is consistent with the parliamentary experience. The Knesset did not denote as “Basic Laws” legislative enactments that were not of a constitutional nature. The Knesset was careful in the past to limit the term “Basic Law” to the chapters of the constitution, in accordance with the Harrari Decision. The Knesset attributes great importance to the use of the term “Basic Law.” Thus, for example, Basic Law: Human Dignity and Liberty expressly states:  ‘The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic State’ (s. 1A). The double emphasis of the Law is not coincidental, and it reflects the uniqueness of the Basic Law. The parliamentary reality underscores this singularity as well. A committee was established – the Constitution, Law and Justice Committee – to deal with the enactment of the Basic Laws. At times a subcommittee on the constitution was established as well.

56. Moreover, every time that a Basic Law is submitted for a preliminary or first reading before the Knesset plenum, it is emphasized that another chapter in the constitution of the State is being brought before the Knesset.

Some examples follow:

(a) In submitting the proposed Basic Law: The Knesset (Knesset Proceedings, vol. 15 (1953) at p. 57), MK Bar-Yehuda noted as follows:

 

In other circumstances I might see this moment as worthy of particular note in the annals of Israeli legislation. You, Members of Knesset, even those of you who were not members of the First Knesset, certainly recall the very long debate between the supporters of the Basic Constitution and the Basic Laws as to the relative value of those two, as to their unique means of protection and the need to distinguish between Basic Constitution or Basic Laws and ordinary laws.’

 

MK Bar-Yehuda analyzed the history of the Harrari Decision and presented the first Basic Law.

(b) The second Basic Law was adopted in the Third Knesset. This was Basic Law: Israel Lands. In presenting the proposed law for a first reading, the Minister of Finance, Mr Levi Eshkol, noted as follows

 

It is not without deep feelings of respect that I make use of the privilege and obligation bestowed upon me to present before you and explain these laws connected with Basic Law: Lands of the Nation. I feel that with my words and participation, I stand as though beside a well from which we have drawn for generations, a well “which the nobles of the people delved” [Numbers 21:18].  And now at the close of the first decade and the beginning of the second decade of the State, we approach that well to deepen it, broaden it and fit it to the new conditions that have arisen with the establishment and existence of the State of Israel’ (Knesset Proceedings, vol. 27, at p. 2839).

 

(c) In presenting the proposed the Basic Law: The President of the State – the third Basic Law – for a first reading, Minister of Justice Dov Yosef noted as follows:

 

Today I am honored to bring before the Knesset the proposal for a law that will constitute another layer in the construction of the Basic Constitution of the State’ (Knesset Proceedings, vol. 36, at p. 963).

 

(d) The fourth Basic Law is the Basic Law: The Government. It was adopted by the Sixth Knesset. At that time the Knesset moved to new premises. The first ceremonial session in the new premises was devoted to a first reading of the Basic Law: The Government. In presenting the law, the Prime Minister, Mr Levi Eshkol, stated as follows:

This festive day, on which the Knesset inaugurates its new home, should be noted in a distinguished piece of legislation, which deals with the rules of law and governance in the State. Basic Law: The Government is a distinguished chapter in the future Israeli constitution. The constitution that the Knesset obligated itself to enact by a fundamental decision made in June 1950... The government’s view is that the time has come for the Knesset to devote a considerable part of its legislative work to completing the missing chapters of the Constitution’ (Knesset Proceedings, vol. 46, at p. 2504).

 

(e) The sixth Basic Law is Basic Law: The Army, which was adopted in the Eighth Knesset. In presenting the proposed Basic Law: The Army for a first reading, Minister of Justice Mr Zadok emphasized that:

The government has toiled for a number of years to conclude the preparation of a system of Basic Laws that will be combined to form a complete constitution. It is therefore natural that the subject of the army, which is addressed in every written constitution, be dealt with in Israel in a Basic Law, which, as mentioned, will constitute one of the chapters of the Constitution’ (Knesset Proceedings, vol. 74, at p. 4002).

 

(f) The ninth Basic Law is Basic Law: The Judiciary, which was adopted by the Ninth Knesset. In presenting the proposed Basic Law: The Courts for a first reading, the Minister of Justice, Mr Tamir, noted that:

I am honored to bring before the Knesset the proposed Basic Law: The Courts, a law that is intended to define the constitutional principles by which the judicial authority will function in Israel… Recently the Ministerial Committee for Legislation completed Basic Law: Legislation, including the entire issue of the Constitutional Court. In addition, in the coming week we will renew the debates on the Basic Law: Human and Citizen’s Rights. Thus we have proceeded with important and expeditious steps toward the great objective of endowing the State of Israel with a constitution’ (Knesset Proceedings, vol. 83, at p. 3216).

 

57. Moreover, the Knesset debates on the Basic Laws were of a singular nature. The Knesset was aware that it was preparing an additional chapter for the State constitution. The members of Knesset were aware that they were not enacting regular legislation, but constitutional legislation, with far-reaching, long-term consequences as to the law and the character of the State. The debate was ceremonial. When the Basic Laws were enacted all were aware of the importance of the moment. The unique nature of the legislation was formally expressed by the designation of the proposal and law as “Basic Law.” This designation constituted an agreed-upon sign that the matter was constitutional; that constitutional continuity extended from the days of the Constituent Assembly and the Harrari Decision; that this legislation was not like all others; that the moment was unique. The designation of legislation as a “Basic Law” is not a formal technical matter. It is the substantive expression of the process by which the constitution was enacted.

 

58. Of course, all this has no formal expression, beyond the requirement that the legislation be designated as “Basic Law” without a specified year of enactment. But this is not significant. The constitutional answer often derives from the constitutional system and constitutional precedent even if they have no formal anchor. Moreover, our constitutional legislation is formally anchored. This formal test – the use of the term “Basic Law” – is simple. It provides security and certainty. This test raises two questions that I would like to set aside for further consideration. The first question is what is the constitutional status of legislation that preceded the Harrari Decision and that is not designated as “Basic Law”? Primarily, should not the Transition Law of 1949 be considered part of the State constitution? I am inclined to the view that there is constitutional legislation – the result of constituent authority – before the Harrari Decision as well. That said, this question may be reserved for further consideration. The second question concerns the role of future Knesset legislation that might abuse the term “Basic Law” by designating as such regular legislation with no constitutional content. This question is by no means simple; its answer extends to the very root of the relationship between the constituent authority (of the Knesset) and the judicial authority (of the courts). This question, as well, I would like to set aside for further consideration.

 

d) Amendment of one Basic Law by another Basic Law

 

59. A Basic Law is a chapter in the State constitution. It derives from the Knesset’s constituent authority. In establishing a Basic Law, we find ourselves at the highest normative level. It therefore follows that a Basic Law, or any of its provisions, can be amended only by a Basic Law. A Basic Law may be amended by regular law only if the Basic Law contains an express provision to that effect. It is, nevertheless, true that the Supreme Court has held in the past that a Basic Law may be amended by regular law (HCJ 60/77 Ressler v. Chairman of Knesset Central Elections Committee [14]). That decision aroused criticism (see Klein, ‘On Semantics and the Rule of Law – Reflections and Appeals of HCJ 60/77 Ressler v. Chairman of the Knesset Central Elections Committee’ 9 Hebrew Univ. L. Rev. (Mishpatim) (1978) 79). Later decisions left this entire question as requiring further consideration (see HCJ 119/80 HaCohen v. Government of Israel [23]).

60. In my opinion, one Basic Law may be changed only by another Basic Law. This is also the position of my colleague Justice Shamgar. Professor Akzin correctly noted that:

 

A law that has been formally designated as a Basic Law cannot be changed, except by a law that has also been formally designated as a Basic Law (Akzin, ibid., at p. 237).

 

Professor Klein also took this position, emphasizing that:

 

Supremacy does not derive from the majority requirement but from the authority creating the norm. Accordingly, even unentrenched Basic Laws are superior to regular legislation and, if it wishes to amend them, the Knesset must do so by means of the appropriate amendment procedures, and not by means of enacting a different, later law.

 

Indeed, if the Knesset wishes to amend the clauses of a Basic Law – for example, changing the system by which the Knesset or the Prime Minister is elected – it must do so in a Basic Law. The only case in which this is not so is when the Basic Law itself provides for a different amendment procedure. Amendment of a Basic Law by another Basic Law may be explicit or implied. Indeed, two Basic Laws occupy the same normative level and therefore must be construed according to the principles governing two norms of equal status.

 

61. As I mentioned above, the prevailing view in the past was that a Basic Law could be amended by a regular law. In an opinion that I handed down more than fifteen years ago, I raised doubts as to that approach (see HCJ 119/80, OM 224/80, HaCohen v. Government of Israel [23], supra). As set forth in that opinion, a Basic Law may not be amended except by another Basic Law. Therefore, the provisions of s. 4 of Basic Law: The Knesset, which establishes the electoral system, may be changed only by Basic Law. It is true that the clause itself provides that ‘this section shall not be varied, save by a majority of the members of Knesset.’ I suggest that we determine that this provision relates to infringement of the electoral system – similar to infringement of the principle of equality in the Bergman case [15] and its offshoots – and not to changing the electoral system itself. It is clear that if the subject were a change in the electoral system – such as a change from proportional representation to regional elections – then not only would a Basic Law be required, but also a ‘majority of the members of Knesset’ as set forth in s. 4 of Basic Law: The Knesset.

 

I am aware that in the past Basic Laws were amended by regular legislation. I do not seek to challenge the force of such amendments, which were supported by the decisions of this Court. Thus, what was done in the past will remain in force. But henceforth, a Basic Law may be changed only by another Basic Law. In order to permit amendment of a Basic Law by regular legislation, the Basic Law must include an express provision to that effect, which must explicitly provide that it deals not only with infringement of the arrangement set forth in the Basic Law – as I will discuss later – but also with amendment of the Basic Law.

 

e) Limitation of the Knesset’s power to amend one Basic Law through another Basic Law (“the problem of rigidity”)

 

62. When the Knesset exercises its constituent authority, is it empowered to limit its constituent authority to amend the Basic Law in the future, thereby ‘fixing’ its constitutional enactment? Thus, for example, is the provision of Basic Law: Freedom of Occupation, by which ‘[t]his Basic Law shall not be varied except by a Basic Law passed by a majority of the members of the Knesset’ (s. 7), constitutional and binding? Is the clause of s. 45 of the Basic Law: The Knesset (according to which ss. 9A, 44 and 45 of the Basic Law may not be revised except by a majority of eighty Members of Knesset) binding? Is the Knesset authorized to provide in Basic Law: Legislation that a Basic Law may not be adopted or amended except by a majority of two-thirds of the Members of Knesset? In my opinion, the answer is yes. In exercising its constituent authority the Knesset may limit the future use of its constituent power. This derives from the very essence of the constituent function. This function aims to create a document that entrenches norms that may be altered only in a special way. The constituent function is intended by its very nature to create a formal constitution, the inherent significance of which is the establishment of provisions as to the means by which the constitution may be amended, and which may themselves be amended in accordance with these provisions, failing which the amendment is unconstitutional (the “unconstitutional constitutional amendment’). Indeed, the power of the Knesset – when it exercises its constituent authority – to limit itself, and thereby “entrench” its provisions, derives from the very grant of its authority to enact a formal constitution.

 

63. Most Basic Laws do not include limitation clauses. The “rigidity” of Basic Laws is expressed in only a few of the Basic Laws. We may conclude that in the absence of a “rigidity” provision, a Basic Law may be amended by a Basic Law adopted by a regular majority. Thus, for example, Basic Law: The Judiciary  or Basic Law: Human Dignity and Liberty may be amended by another Basic Law adopted by a regular majority. Note that the absence of a limitation clause does not detract from the normative status of the Basic Law as a superior norm in the Israeli legal system. The absence of a limitation clause negates the rigidity of the Basic Law in relation to other Basic Laws, and permits its amendment or infringement by a Basic Law enacted later by a regular majority. The absence of a limitation clause does not lower the status of the Basic Law to the level of regular law. A non-rigid Basic Law is still a Basic Law. It is not a “regular” law and it cannot be amended by regular legislation.

 

f) Basic Law and regular law

 

64. A Basic Law is a chapter in the constitution. It stands “above” regular legislation. As we have seen, a regular law cannot amend a Basic Law. Can a regular law affect the arrangements set forth in the Basic Law? The apparent answer is that the regular law cannot do so unless the Basic Law so permits. This conclusion follows from the supremacy of the Basic Law. Such supremacy prevents a regular law from affecting the arrangements of the Basic Law. At the same time, this supremacy itself leads to the conclusion that a Basic Law may provide for conditions and circumstances under which regular legislation may infringe the arrangements set forth in the Basic Law. The hand that gave is the hand that hath taken away. The presumption is therefore that regular legislation may not impinge upon the arrangements set forth in a Basic Law unless the Basic Law expressly provides otherwise. However, the case law of the Supreme Court has upset this presumption. The Court has decided that in the absence of an ‘entrenchment’ provision – i.e. a provision entrenching the Basic Law against infringement by regular legislation – the latter may encroach upon the arrangements set forth in the former (see HCJ 148/73 Kaniel v. Minister of Justice [13]; HCJ 60/77 Ressler v. Chairman of Knesset Central Elections Committee [14], supra; HCJ 107/73 ‘Negev’ – Automobile Service Stations Ltd v. State of Israel [12]. This precedent has developed from the directive contained in s. 4 of Basic Law: The Knesset. Under that section, the election system provided for in the statute may not be changed ‘except by a majority of the Members of Knesset.’ This is an instance of “formal entrenchment” that protects the Basic Law against infringement by regular legislation, but permits possible infringement by legislation enacted by the special majority set forth in the Basic Law. In light of the entrenchment provision set forth in s. 4, the Court concluded that regular legislation may infringe other arrangements set forth in a Basic Law when the Basic Law does not provide for entrenchment. If this were not the case, the clauses of a Basic Law that are silent as to entrenchment would be more strongly safeguarded against infringement by regular legislation than the clauses of a Basic Law protected by a special entrenchment arrangement that was certainly intended to strengthen rather than weaken the safeguard. While this conclusion is possible, it is not mandatory. The Court could have concluded that in the absence of an entrenchment provision, the provisions of a Basic Law may be infringed by regular legislation, but only where that infringement is explicit. It would therefore have been possible to continue to emphasize the superior normative status of the Basic Law, while at the same time maintaining the appropriate distinction between a Basic Law providing for entrenchment and a Basic Law that is silent in this regard. I would like to reserve this issue for further consideration, since Basic Law: Human Dignity and Liberty contains an entrenchment provision. The entrenchment called for in the Basic Law is not formal, requiring a particular majority in order to pass the infringing law. Rather, the entrenchment is substantive, permitting infringement by means of regular legislation only if the regular legislation meets the substantive requirements. The limitation clause set forth in section 4 of Basic Law: Freedom of Occupation and section 8 of Basic Law: Human Dignity and Liberty provides for substantive entrenchment. Under that provision, regular legislation may not infringe the human rights protected by the Basic Law unless it fulfill the substantive requirements of content. This entrenchment provision is binding. It is legal. It negates the power of non-complying regular legislation to infringe the human rights safeguarded by the Basic Law.

 

g) Substantive entrenchment provisions in the Basic Law and express infringement in regular legislation

 

65. A Basic Law provides that no legislation may infringe its provisions unless certain substantive requirements are met (substantive entrenchment). A regular law expressly infringes the clauses of the Basic Law without meeting the required substantive requirement. What is the fate of the regular law? In my opinion this regular law is unconstitutional. It may be declared void.

 

Indeed, just as a regular law may not implicitly infringe the clauses of an entrenched Basic Law – because it is on a lower normative level than the entrenched Basic Law – so it may not explicitly encroach upon those provisions. The express provision of the regular law emphasizes its constitutional position, enabling the judicial conclusion that the law indeed infringes the arrangement set forth in the Basic Law. Of course, this conclusion does not apply when the Basic Law expressly provides that despite non-compliance with the substantive entrenchment provision, the Basic Law may be infringed by regular legislation meeting certain formal conditions. Such a provision may be found in the override clause set forth in section 8 of Basic Law: Freedom of Occupation. Thus, in order for regular legislation that infringes a Basic Law to be constitutionally valid, the Basic Law must contain an express provision to that effect. The fact that the Basic Law is silent in this regard precludes such infringement. The constitutional difference between an entrenched Basic Law and non-entrenched Basic Law is therefore made manifest. Both are Basic Laws. Both occupy the primary normative level. Nonetheless, they are different. The arrangements of an entrenched Basic Law cannot be infringed by regular legislation unless the entrenchment requirements are met. In contrast, the arrangements of a non-entrenched (or silent) Basic Law may be infringed by regular legislation. This distinction between the different Basic Laws will, of course, disappear with the entrenchment of all the Basic Laws, as recommended in the draft of  Basic Law: Legislation.

 

h) Limitation in regular legislation

 

66. What is the rule in regard to a limitation clause included in a “regular” law, under which such law may not be amended or infringed except by regular legislation meeting specified requirements (as to form or content)? For example, what is the rule in regard to s. 3 of the Law for Protection of Public Investment in Israel in Financial Property, 5744-1984? This section provides that ‘this law may not be amended nor may the appendix be revised except by a majority of the Members of Knesset.’ Is there a difference in this context between a limitation that calls for ‘a majority of the Members of Knesset’ and one that calls for ‘a majority of two-thirds of the Members of Knesset’ or of eighty Members of Knesset? The answer to this question highlights the substantive difference between the doctrine of unlimited Knesset supremacy and the doctrine of constituent authority. According to the former doctrine, the Knesset may exercise its unlimited supremacy in order to limit its own legislative authority. In contrast, the doctrine of constituent authority recognizes the Knesset’s power to exercise its constituent authority in order to limit its power.

 

The doctrine of constituent authority does not address the question of whether the Knesset is empowered to exercise its legislative authority in order to limit its future use of this authority. Because this question does not arise in the appeal before us I would like to reserve it for further consideration. I will note only that recognizing that the Knesset may effect such a limitation by means of its constituent authority does not, in and of itself, lead to the conclusion that the Knesset may effect such a limitation by means of its legislative authority. As we have seen, the constitutional limitation prevents today’s majority from changing arrangements adopted in the past. This is justified by the nature of the constitution and the rationale upon which it is based. The constitution deals with the basic issues of governmental structure and human rights. It seeks to prevent their infringement by regular legislation. It treats of the constitutional institutions – the Knesset, government and courts – whose stability must be ensured. It treats of the basic values that society endeavors to secure. A society that seeks a constitution, seeks by means of the constitution to remove certain values from the reach of the “regular” majority (see J. Rawls, Theory of Justice (1983), at p. 228; B. Ackerman, We The People: Foundations (1991), at p. 272). In contrast, recognizing the power of regular legislation to limit itself prevents today’s majority from changing the day-to-day arrangements adopted in the past. Such recognition would require that we consider why one generation should be granted the power to dictate the day-to-day behavior of another generation. Indeed, recognizing the Knesset’s power as a legislative authority to limit its legislative power requires a supporting constitutional doctrine. Because this question has not arisen before us, I would like to reserve it for further consideration.

 

67. In this regard, I would also like to reserve for further consideration the question of whether there is a substantive difference between a limitation requiring a “majority of the Members of Knesset” (an “absolute majority”) and a limitation requiring a greater majority. This distinction stands at the base of my colleague Justice Cheshin’s approach. For myself, I harbor grave doubts that an “absolute majority” requirement is the simple result of a democratic arrangement. According to such a requirement, an abstaining MK is seen as voting no. This abrogates the right to abstain of the MK who is truly not prepared to vote yes or no. This is a most serious abrogation. I question whether it falls within the rubric of the democratic outlook. The MK’s “right” of non-participation is similarly denied, for every non-participation is construed as a vote against. The possibility of a ‘setoff’ between votes for and against is also denied, for the significance of every such setoff arrangement is that both are seen as votes against. All these raise most serious questions. On the surface, the “democratic majority” is a majority of the Members of Knesset actively voting. This is the case in the various parliaments around the world (see Inter-Parliamentary Union, “Methods of Voting,” 32 Constitutional and Parliamentary Information (1982) 179, 203). A change in the voting system requiring a majority of all Members of Knesset (and six Members) on its face calls for justification by a constitutional doctrine. It is not derived from the “voting rules” themselves (see United States v. Baellin [93], at pp. 507, 509). We need not decide this question in this appeal. Our issue is the entrenchment provision of a Basic Law, not the limitation clause of a regular law. I therefore wish to reserve this question for further consideration.

 

i) The Basic Law regarding human rights and regular legislation

 

68. Until this point, I have examined the status of the Basic Laws as such. I will now turn to the two Basic Laws on human rights. Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Liberty were – as their names signify – were enacted by the Knesset under its constituent authority. They therefore occupy the highest normative level. They cannot be amended by regular legislation (either explicitly or implicitly). Can regular legislation infringe the provisions in those laws? The answer is that these two Basic Laws are not silent Basic Laws. They include entrenchment provisions. They provide for an express, detailed scheme as to the power of regular legislation to infringe the arrangement safeguarded by the Basic Laws. This scheme is constitutionally valid, and must be given effect. It is not subject to change or infringement except by Basic Law. This unique scheme is given expression in the two central provisions common to both Basic Laws, the application clause and the limitation clause. The scheme is also expressed in a third provision, the override clause, which appears only in Basic Law: Freedom of Occupation.

 

69. The application clause of Basic Law: Freedom of Occupation provides as follows:

 

All governmental authorities are bound to respect the freedom of occupation of all Israeli nationals and residents’ (s. 5).

 

The parallel provision in Basic Law: Human Dignity and Liberty provides:

 

All governmental authorities are bound to respect the rights under this Basic Law’ (s. 11).

 

Similar provisions appear in other constitutions (see s. 1(3) of the German Basic Law and s. 32(1) of the Canadian Charter of Rights and Freedoms). The application clause applies to all government authorities. It applies to the legislative authority, the executive and the judiciary. It applies to the central and local authorities. It applies to every authority granted power by law. This is a central provision. It declares the direct legal effect of the Basic Laws upon the governmental authorities. It weaves the basic rights into the fabric of all governmental decisions. Above all, it obligates the legislature – one of the governmental authorities – to honor human rights. The “regular” laws are therefore subject to human rights. The regular legislature is not all-powerful. The legislative power given to the legislature is subordinate to its obligation to honor human rights. The application clause breaches the silence of the two Basic Laws as to human rights. It substantively entrenches the clauses of the Basic Law against infringement by regular legislation. It thereby expressly declares that regular legislation must honor human rights, and certainly may not infringe them, except as provided in the Basic Laws themselves. The application clause is not merely declarative. It is a substantive provision that constitutes an important axis upon which the constitutional structure depends. It is similarly expressed in other legal systems (such as Canada and Germany), in which comparable provisions are found.

 

70. The “limitation clause” of Basic Law: Freedom of Occupation provides as follows:

 

There shall be no violation of freedom of occupation except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required, or by regulation enacted by virtue of express authorization in such law (s. 4).

 

A parallel provision appears in Basic Law: Human Dignity and Liberty, as follows:

There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required (s. 8).

 

These are the key provisions in both Basic Laws. The limitation clause – as its name indicates – limits both the legislature and human rights. This is a substantive entrenchment provision. Its purpose is twofold: the constitutional protection of human rights while providing the constitutional criteria that permit infringement of human rights. These criteria – set forth in a preeminent constitutional document – provide the means by which the legislature may legally infringe human rights. Expression is thereby given to the normative relationship between Basic Laws and regular legislation. Regular legislation cannot – explicitly or implicitly – infringe the human rights safeguarded by these Basic Laws unless it meets the requirements of the limiting clause. In his analysis of the limitation clause in Basic Law: Human Dignity and Liberty, Dr Maoz notes that this provision takes precedence over all legislation. He adds:

This preference derives not from the legislature’s intention not to infringe the limitation clause, but from the entrenchment – or limitation – in which the constituent authority garbed the limitation clause. In forbidding the legislature to enact a provision infringing the human rights safeguarded by the Basic Law, except in accordance with the conditions set out in the limitation clause, the constituent authority obviously nullified the legislature’s power to do so, be the legislature’s intent what it may (Maoz, ibid., at p. 149)

 

71. The third provision that provides constitutional arrangements as to the relationship between the two Basic Laws and regular legislation is the override clause, which is found only in Basic Law: Freedom of Occupation and provides as follows:

 

A provision of a law that violates freedom of occupation shall be of effect, even though not in accordance with section 4, if it has been included in a law passed by a majority of the members of the Knesset, which expressly states that it shall be of effect, notwithstanding the provisions of this Basic Law; such law shall expire four years from its commencement, unless a shorter duration has been stated therein (s. 8).

 

This provision is unique. It expresses formal entrenchment. It was influenced by a similar provision in the Canadian Charter (s. 33) but includes several important changes. It permits the regular legislature – under certain conditions – to enact a (regular) law infringing the freedom of occupation even if the law does not fulfill the requirements of the limitation clause. The two conditions are as follows: first, the regular law must expressly provide that it has effect notwithstanding the provisions of Basic Law: Freedom of Occupation; and second, the regular law must be enacted by a majority of the Members of Knesset. When these two conditions are met, constitutional validity will be granted to a law that infringes the Basic Law for a period of four years. At the end of that period the law expires. Thus another route is opened – parallel to that provided in the limitation clause – to permit the infringement of a basic right (freedom of occupation). In using its constituent authority, the Knesset thus expressed its view that regular legislation – which does not meet the requirements of the limitation or override clause – may not infringe the freedom of occupation. No similar provision appears in Basic Law: Human Dignity and Liberty. In this respect, the human rights set forth in Basic Law: Human Dignity and Liberty are more strongly protected against the effects of regular legislation than the freedom of occupation.

 

j) Legislation that lawfully infringes a protected human right

 

72. Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation therefore set out the legal status of regular legislation that infringes the human rights safeguarded in the Basic Laws. If a regular law fulfills the entrenchment requirements (formal and substantive) set out in the Basic Law, the regular law is constitutional. This expresses the central idea that human rights – set forth in the Basic Laws in absolute terms – are relative rights. Human dignity, freedom, property, movement, privacy and freedom of occupation are not absolute rights. They are subject to infringement in order to protect the social framework. It should be noted that the constitutionality of the infringement does not make the infringing law part of the constitution. The constitutionality of the infringement does not lower the constitutional status of human rights. The constitutionality of the infringement means that the constitutional human right is subject to infringement by regular legislation if such legislation meets the criteria set forth in the constitution. There is a substantive difference between amendment of the constitutional human right and its infringement. Amendment of the human right constitutes amendment of the constitution, and requires legislation at the same normative level, i.e. by means of a Basic Law. Infringement of a constitutional human right may be accomplished by means of regular legislation that meets the requirements of the constitution. There is no need for a constitutional edict, since the constitutional right itself does not change. Regular legislation is sufficient, as long as it fulfills the parameters set forth in the Basic Law itself.

 

73. The status of regular legislation that infringes a protected human right is therefore different according to each of the two Basic Laws. The right protected in Basic Law: Freedom of Occupation is subject to infringement by two alternative means. First, if the infringing legislation accords with the limitation clause; second, if it is enacted in accordance with the override clause. Regular legislation that does not meet either of these alternatives is unconstitutional and therefore void. Accordingly, regular legislation adopted by a regular majority that infringes freedom of occupation and does not fulfill the requirement of the limitation clause is unconstitutional, even if such a law expressly states that it infringes freedom of occupation. The rights safeguarded in the Basic Law: Human Dignity and Liberty are subject to infringement only by means of the limitation clause. The Basic Law does not provide a second path in the form of an override clause. There is also no possibility of creating a judicial override clause, nor any need to. Therefore, regular legislation – by whatever majority it is enacted – that infringes a human right protected by this Basic Law, that expressly provides that it is adopted ‘notwithstanding the provisions of the Basic Law’ or that it is expressly intended to impinge upon its arrangements, will not be constitutional if it does not meet the requirements of the limitation clause. In the absence of an override clause, there is no means by which this express provision can save the regular law from unconstitutionality. On the contrary, an express provision such as this points up what is in fact the constitutional status of the law, facilitating the judicial determination that the law indeed violates a protected human right.

 

The result, therefore, is that the human rights safeguarded in Basic Law: Human Dignity and Liberty enjoy more comprehensive protection than that afforded freedom of occupation, insofar as the matter concerns infringement by regular legislation. The picture changes when the infringement (or amendment) is based upon a Basic Law. A special majority (‘a majority of the members of the Knesset’) is required in order to amend Basic Law: Freedom of Occupation (s. 7). A regular majority is sufficient to amend the human rights safeguarded in Basic Law: Human Dignity and Liberty. This is, without doubt, anomalous. This may be corrected by Basic Law: Legislation, which will make all of the Basic Laws, and the arrangements safeguarded therein, subject to identical requirements as to amendment or infringement.

 

III) Judicial review of constitutionality

a) Constitutional supremacy and judicial review

 

74. The constitution is the superior norm of the legal system. A regular law may be permitted to conflict with the clauses of the constitution only if it meets the criteria provided in the constitution itself. What is the fate of a law that does not meet these criteria? What is the remedy for an unconstitutional law? (For a discussion of these questions see A. Shapira and B. Bracha, “The Constitutional Status of the Rights of the Individual,” 5 Tel-Aviv University Law Review (Iyyunei Mishpat) (1972) 20, 42). The answer to these questions depends first and foremost upon the provisions of the constitution itself. Often the constitution establishes – and is empowered to establish – the legal sanctions imposed upon an unconstitutional law. Thus, for example, the “Supremacy Clause” of the Canadian Charter of Rights and Freedoms (s.(1)52) invalidates conflicting legislation that does not meet the requirements of the Constitution, as follows:

 

The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the clauses of the Constitution is, to the extent of the inconsistency, of no force or effect.

 

Similar provisions are found in many modem constitutions, particularly those of European countries after the First World War. Such provisions proliferated in the constitutions of European countries after the Second World War and the victory over the Nazis. One of the lessons of the Second World War was that constitutional supremacy and judicial review of constitutionality are potent weapons against the enemies of democracy (see E. McWhinney, Judicial Review (1960); M. Cappelletti, Judicial Review in the Contemporary World (1971); M. Cappelletti, The Judicial Process in Comparative Perspective (1989); A. Brewer-Carias, Judicial Review in Comparative Law (1983)).

 

But what is the rule when the constitution is silent in this matter? The answer to this question depends upon the culture and tradition of the legal system. It is determined by the adjudication rule of the particular legal system (see H.L.A. Hart, The Concept of Law, ibid., at p. 96). Thus, for example, it may be recognized – as was the tradition in nineteenth century Europe – that the constitution binds the institutions of the government. However, noncompliance with a constitutional directive does not lead to invalidation of the law, and the Court is not empowered to impose the sanction of voiding such legislation. According to this view, the obligation to ensure compliance with the constitution rests with the government institutions themselves, and if they violate this obligation, the sanctions are in the hands of the public on election day (see Akzin, II The Doctrine of Governments, ibid., at p. 9). But this is not the only view, nor is it the most widely held. Today this is the minority view. Indeed, a particular legal tradition and culture are likely to lead to the conclusion that constitutional silence in this matter should be interpreted as calling for the invalidation of conflicting legislation and to the concomitant conclusion that the determination of whether such a conflict exists rests not with the legislature but with the court. Under this view, constitutional silence requires judicial review and authorizes the court to declare unconstitutional legislation void. We will now examine this tradition.

 

b) The case of Marbury v. Madison

 

75. The American legal tradition – since the 1803 decision in Marbury v. Madison [94] – is that a statute that conflicts with the clauses of the constitution is void, and any court is empowered so to declare. The United States Supreme Court reached this conclusion despite the absence of an express provision to that effect in the Constitution of the United States. Justice Marshall wrote:

 

The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the Constitution controls any legislative act repugnant to it; or, that the legislature may alter the Constitution by an ordinary act. Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

 

Indeed, the constitution is intended to limit the legislature. This limitation is meaningful only if a regular law cannot prevail over the constitution. There is no middle ground: either the constitution is supreme and may not be amended by regular means, or it has the same status as a regular law, which the legislature may change at its whim. Justice Marshall added:

 

If an act of the legislature, repugnant to the Constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? ... It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the Constitution; if both the law and Constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the Constitution; or conformably to the Constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

 

Since that decision, it is beyond doubt in the United States that legislation conflicting with the Constitution is void, and it is the role of the court – in interpreting the Constitution and the law – to determine the existence of a conflict, as well as its consequences. Thus arises the doctrine of the judicial review of constitutionality. This doctrine is a cornerstone of the American constitutional system. Remove it and the entire structure collapses.

 

c) Judicial review of constitutionality – the modern experience

 

76. The American experience with judicial review of constitutionality has spread well beyond that country. That experience has influenced constitutional thinking throughout the entire world. It has dominated the various constitutional systems established since the Second World War. It has been accepted as the guideline in all of the Eastern Bloc states since the liberation from Soviet control (see Schwartz, “The New East European Constitutional Courts,” 13 Mich. J. Int. L. (1992) 741). This may be the central contribution of American constitutional thought to constitutional thinking throughout the world.

 

As we have seen, express provisions in this regard appear in the constitutions that have been adopted by many states after the Second World War (see, e.g., the constitutions of Germany, Japan, Italy, Ireland, Austria, Cyprus, India, and Turkey). Even in states whose constitutions do not include express provisions in this regard – and that are part of the common law legal culture – the view has become accepted that an unconstitutional law is invalid, and the court is empowered so to decree (see, e.g., Cowen, “Legislature and Judiciary,” 15 Mod. L. Rev. (1952) 282; 16 Mod. L. Rev. (1953) 273). An increasing number of states have recognized the judicial review of constitutionality. Justice Frankfurter justly noted that the conclusion reached by the American Supreme Court in the Marbury case [94]:

 

[H]as been deemed by great English speaking courts an indispensable, implied characteristic of a written Constitution’ (F. Frankfurter, “John Marshall and the Judicial Function,” 69 Harv. L. Rev. (1955) 217, 219).

 

Indeed, a long list of judicial decisions throughout the common-law world has recognized – in the absence of an express constitutional provision – judicial review of constitutionality (see, e.g., Harris v. Minister of Interior [111]; Clayton v. Heffron [82]; Bribery Commissioner v. Ranasinghe [104]; Akar v. Attorney-General of Sierra Leone [105]. See Rubinstein, The Constitutional Law of the State of Israel (annotated second edition, 1974), at p. 281).

 

d) Judicial review of constitutionality in Israel

 

77. Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Liberty do not explicitly address the consequences of a law that infringes a constitutionally protected right and does not comply with the requirements of the Basic Laws. The proposed Basic Law: Legislation includes general provisions in this regard. That proposal, however, has not yet completed the legislative process in the Knesset. The two Basic Laws contain no ‘supremacy clause.’ What is the law in such a situation? It seems to me that our legal tradition requires us to conclude that the remedy for an unconstitutional law is its invalidation, and that the courts have been endowed with the authority to declare it invalid. Just as a regulation that conflicts with statute is void and may be declared as such by the court, so too should be the case when a regular law conflicts with a Basic Law; the law is void and the court is empowered to declare it so.

 

Important judicial developments have led to the recognition of this conclusion in Israel. The question arose first in the case of Bergman v. Minister of Finance [15]. The court noted that it would leave for future consideration the determination of whether or not the relationship between an entrenched Basic Law and a conflicting regular law that did not meet the entrenchment requirements was a justiciable question. Over the years a number of decisions were handed down, the majority of which effectively voided regular laws that did not meet the entrenchment provisions of a Basic Law. As time passed, this tradition became established (see Derech Eretz Association v. Broadcasting Authority [19]; Rubinstein v. Knesset Speaker [20]). In the Rubinstein case [20], Justice S. Levin noted:

As the number of instances increases in which the court is asked to decide issues of constitutional significance of this nature, so does the likelihood decrease that the court will stay its hand from deciding them, particularly when the Attorney-General will in the future raise similar questions (p. 148).

 

As I noted in a previous case:

In seeking to amend an “entrenched” provision without having been adopted by the necessary majority of Members of Knesset, a law of the Knesset – whether a “regular” law or a Basic Law – contradicts the entrenchment provisions of the Basic Law. In view of its legal force the “entrenchment” provision will prevail. In a clash between the entrenchment provision and the clause that purports to amend it without meeting the necessary majority requirements, we do not apply the usual principles, according to which a later-enacted statute invalidates an earlier statute. In this conflict we apply the principle that grants normative supremacy to the entrenched Basic Law. We find that legislation that seeks to change an entrenched Basic Law without meeting the necessary majority is null and void. The court is empowered to declare such nullity. Indeed, the very inclusion of an entrenchment provision calls for the court, as an independent institution, to review the legal validity of legislation that purports to amend an entrenchment provision without meeting the special majority requirement… The existence of an entrenchment provision implies that there will be judicial review, and that the court is therefore empowered to determine that a statutory provision – whether set forth in a “regular” or a Basic Law – when enacted by a “regular” majority and not that set forth in the entrenchment provision, is null and void. The court has decided according to this view in the past’ (Laor Movement case [21], at pp. 539-540).

 

This approach accords with our tradition. It is consistent with our general legal culture. It is accepted in the Israeli community (see Rubinstein, ibid., at p. 461; see also Burt, ‘Inventing Judicial Review: Israel and America,’ 10 Cardozo L. Rev. (1989) 2013). It is required by the application clause included in both Basic Laws. Indeed, if the Knesset is ‘required to respect the rights under this Basic Law’ (as stated in s. 11 of Basic Law: Human Dignity and Liberty), then this is not merely a ‘political’ obligation of the Knesset but also a ‘legal’ obligation. If this is so, then it is necessary that some body other than the Knesset – i.e. the Court – determine whether in fact the rights set forth in the Basic Law have been honored.

 

e) The rationale for judicial review of constitutionality

(i) Judicial review and the rule of law

 

78. The doctrine of judicial review of constitutionality is based upon the ‘rule of law,’ or, more correctly, the rule of the constitution or the law (see L. Sheleff, “The Two Meanings of ‘The Rule of Law’,” 16 Tel-Aviv University Law Review (Iyyunei Mishpat) (1991) 559). The central role of the court in a democratic society is ‘to protect the rule of law. This means, inter alia, that it must enforce the law in the institutions of the government, and it must ensure that the government acts according to the law’ (Ressler v. Chairman of Knesset Central Elections Committee [14], at p. 462). When a given legal system includes a constitution, the “rule of law” requires that the sovereignty of the constitution be protected. Thus the Knesset, in using its constituent authority, endowed the State with Basic Laws. In the normative hierarchy, the Basic Laws are paramount. In order to fulfill the Knesset’s directives, regular legislation that conflicts with a Basic Law must be invalidated, in the same way that a regulation that conflicts with law is invalidated. In presenting the proposed Basic Law: Legislation for a first reading, the Justice Minister, Mr Zadok, maintained as follows:

I agree that the Knesset must be given broad latitude and room to maneuver in its legislative work, but this sovereignty should not be interpreted to permit arbitrariness as to basic principles. It seems to me that the doctrine of the rule of law, which we all espouse, means that everyone is subject to the law: the Government, governmental agencies, the President, the State Comptroller, and the Knesset as well. Just as the other state institutions operate within a limited framework of authority, such a framework, albeit broader, must be established for the Knesset’s legislation (Knesset Proceedings, vol. 76, at p. 1705).

 

Thus, in declaring invalid a law that does not meet the requirements of the Basic Law, the court fulfills the Basic Law. The constitution and the Basic Law themselves legitimize the judicial review of constitutionality. As MK Menahem Begin described it during the debate on the constitution in the First Knesset:

One of the two: either it will be a constitution that is superior to all other law, or it will be a worthless piece of paper (Knesset Proceedings, vol. 4, at p. 737).

 

Thus, judicial review of the constitutionality of the law is the soul of the constitution itself. Strip the constitution of judicial review and you have removed its very life. The primacy of the constitution therefore requires judicial review. As Professor Kelsen has noted:

The application of the constitutional rules concerning legislation can be effectively guaranteed only if an organ other than the legislative body is entrusted with the task of testing whether a law is constitutional...(H. Kelsen, General Theory of Law and State, Wedberg, trans. (1961), at p. 157).

 

(ii) Judicial review and the separation of powers

 

79. Judicial review of the constitutionality of the law derives from the principle of separation of powers. The legislature’s authority is to enact laws. In order to do so it is authorized to interpret the constitution itself. When the resolution of a dispute between litigants requires interpretation of the constitution, such interpretation is in the hands of the Court. The Court’s interpretation is binding. Within the framework of the separation of powers, interpretation of the constitution is the responsibility of the Court (see Flatto-Sharon v. Knesset House Committee [2], at p. 141). As I noted in a different case:

 

In a democratic system, based upon the separation of powers, the authority to interpret all legislation – from Basic Laws to regulations and regulatory orders – is the province of the Court ... Any other approach violates the essence of judicial power and utterly distorts the principle of the separation of powers and the checks and balances between them’ (See Kach Faction v. Knesset Speaker [49], at p. 152).

 

Thus, judicial review of constitutionality both derives from and gives expression to the principle of separation of powers. As Chief Justice Burger noted:

 

In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution .... Many decisions of this Court, however, have unequivocally reaffirmed the holding of Marbury v. Madison ... That [it] is emphatically the province and duty of the judicial department to say what the law is ... Any other conclusion would be contrary to the basic concept of powers and the checks and balances that flow from the scheme of a tripartite government (see United States v. Nixon [95], at pp. 703-704).
 

The Court’s constitutionally mandated role of interpreting the constitution leads to the adjudication of disputes according to the constitution. Adjudication according to the constitution, rather than according to the law, can incidentally lead to the invalidation of a law. This invalidation is not a violation of the separation of powers, but rather its realization. Indeed ‘separation of powers does not mean the absolutism of each power in its own area. Such absolutism violates freedom, the realization of which is the very basis for the separation of powers’ (HCJ 5364/94 Welner v. Chairman of Israeli Labour Party [50], at p. 790). The creation of the constitution in accordance with constituent authority requires a concurrent grant of interpretive authority to the judicial branch. To judge means to interpret. Constitutional interpretation must naturally and inevitably result in the determination that a law in conflict with the constitution is invalid. This is the role of the judicial branch in a tripartite system.

 

(iii) Judicial review and democracy

 

80. But is judicial review democratic? Is it democratic that the court –whose judges do not stand for election by the people and do not present a social and political platform – be empowered to invalidate a law enacted by elected officials? (For a discussion of this question in the American literature, see Lahav, “The American Doctrine of Judicial Review: Themes and Variations,” 10 Tel-Aviv University Law Review (Iyyunei Mishpat) (1984) 491; Horowitz, “American Legal Thought After World War II – 1945-1960,” 16 Tel-Aviv University Law Review (Iyyunei Mishpat) (1991) 445, 452). The formal answer is simple. The court, in its judicial review of the constitutionality of law, gives effect to the constitution and the Basic Law. Hamilton addressed this point over two hundred years ago (in The Federalist No. 78) in discussing the judicial review of constitutionality in relation to the constitution itself:

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both, and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws rather than by those which are not fundamental (Hamilton and Madison et al., The Federalist Papers (1788; Mentor ed. 1961) 467-468).

 

In a similar spirit, Rawls stated the following:

 

A supreme court fits into this idea of dualist constitutional democracy as one of the institutional devices to protect the higher law. By applying public reason the court is to prevent that law from being eroded by the legislation of transient majorities, or more likely, by organized and well-situated narrow interests skilled at getting their way. If the court assumes this role and effectively carries it out, it is incorrect to say that it is straight-forwardly antidemocratic. It is indeed anti-majoritarian with respect to ordinary law, for a court with judicial review can hold such law unconstitutional. Nevertheless, the higher authority of the people supports that. The court is not anti-majoritarian with respect to higher law when its decisions reasonably accord with the constitution itself and with its amendments and politically mandated interpretations (J. Rawls, Political Liberalism, (1993), supra, at p. 233).

 

However, a formal answer alone is not sufficient. There is a substantive answer as well. The substantive answer is that the judicial review of constitutionality is the very essence of democracy, for democracy does not only connote the rule of the majority. Democracy also means the rule of basic values and human rights as expressed in the constitution. Democracy strikes a delicate balance between majority rule and the basic values of society. Indeed democracy does not mean formal democracy alone, which is concerned with the electoral process in which the majority rules. Democracy also means substantive democracy, which is concerned with the defense of human rights in particular (see Y. Shapira, Democracy in Israel (1977), at p. 35). Professor A. Rubinstein has addressed this matter, noting:

 

The true meaning of democracy includes not only the principle of the will of the majority but also the limitation of the will of the majority. The constant tension between these two poles – the power of the majority and its limitations – is the axis of the democratic process. It may prefer a minority or the individual, as such, to the majority in granting certain rights.(A. Rubinstein, “Israeli Law in the Seventies,” 2 Tel-Aviv University Law Review (Iyyunei Mishpat) (1972) 271, 274).

 

In a similar vein, Professor Dworkin has noted:

 

True democracy is not just statistical democracy, in which anything a majority or plurality wants is legitimate for that reason, but communal democracy, in which majority decision is legitimate only if it is a majority within a community of equals. That means not only that everyone must be allowed to participate in politics as an equal, through the vote and through freedom of speech and protest, but that political decisions must treat everyone with equal concern and respect, that each individual person must be guaranteed fundamental civil and political rights no combination of other citizens can take away, no matter how numerous they are or how much they despise his or her race or morals or way of life (R. Dworkin, A Bill of Rights for Britain, supra, at p. 35).

 

In fact when the majority strips the minority of its human rights, democracy is infringed (see J. Ely, Democracy and Distrust, A Theory of Judicial Review, (Cambridge 1980)). Judicial review of constitutionality therefore prevails over what is known as the ‘counter-majoritarian dilemma.’ One way to accomplish this is by emphasizing that when judges interpret the constitution and invalidate contradictory laws they give expression to the fundamental values of society that have developed over time. Thus the court safeguards constitutional democracy and maintains the delicate balance upon which it is based. Remove majority rule from constitutional democracy and its essence is harmed. Remove the sovereignty of fundamental values from constitutional democracy and its very existence is called into question. Judicial review of constitutionality enables a society to be true to itself and to honor its basic conceptions. This is the basis for the substantive legitimacy of judicial review. This is also the true basis for the principle of constitutionality itself. We are bound by the constitution that was enacted in the past because it expresses the fundamental outlook of modem society. It may therefore be said that each generation enacts the constitution anew. By means of judicial review we are loyal to the fundamental values that we took upon ourselves in the past, that reflect our essence in the present, and that will direct our national development as a society in the future.

 

It is therefore no wonder that judicial review has become more common. The majority of enlightened democratic states have judicial review. It is difficult to imagine the United States, Canada, Germany, Japan, Spain, Italy, and many other nations without judicial review of constitutionality. The twentieth century is the century of judicial review. It imparts real meaning to the principle of constitutionality, to constitutional democracy and to the proper balance between majority rule and human rights, between the collective and the individual. It may be said that whoever argues that judicial review is undemocratic is in effect arguing that the constitution itself is undemocratic. To maintain that judicial review is undemocratic is to maintain that safeguarding human rights is undemocratic. To maintain that judicial review is undemocratic is to maintain that defending the rights of the individual against the majority is undemocratic. The democratic nature of the state is not determined by the representative nature of each of its branches but rather by the democratic nature of the government as a whole. In examining the democratic aspect of judicial review, it must be noted that every constitution provides for methods by which it may be amended. As long as these methods are not rigid they allow today’s majority to realize its aspirations. The methods by which a constitution may be amended reflect the balance that the society wishes to maintain between past and present, between long-term values and short-term aspirations, between value and policy. These methods are set forth in the constitution itself and are shaped by political forces. To the extent that these methods are not unduly rigid, they allow today’s majority to express its perceptions and thereby blunt the argument that bases itself on the formal conception of democracy.

 

This argument is further weakened – in effect to its very core – in those legal systems (such as Canada and to a limited extent Israel) that include an override clause. Indeed the override clause (s. 8 of Basic Law: Freedom of Occupation) provides a constitutional means by which today’s political majority may lawfully infringe the constitution. This is not a constitutional amendment, for legislation that infringes the constitution does not change the latter’s provisions. Nevertheless, a constitutional apparatus is created that allows today’s majority to realize its aspirations in a constitutional manner even as it affects values and rights that the constitution wishes to protect (see L.E. Weinrib, “Learning to Live with the Override,” 35 McGill L. J. (1990) 541). Through the override clause, the legal system may prevail over the democratic argument which enables formal democracy to prevail in certain conditions over substantive democracy. Excessive use of this method will, of course, ultimately result in the frustration of the constitutional enterprise itself.

 

(iv) Judicial review and judicial objectivity

 

81. Judicial review expresses the values of the constitution. By means of judicial review the judge makes manifest the ideals of the society in which he lives. He expresses the fundamental conceptions of society as it moves through the shifting sands of history. The judge in particular, who does not face election and who benefits from judicial independence, is worthy of this task. It is precisely because the judge is not elected by the people and does not present them with a social and political platform that  qualifies him express society’s profoundest perceptions without being influenced by the needs of the moment. For this purpose he must operate with judicial objectivity. He must express the outlook of society even if it is not his personal outlook. As I have noted in a previous decision:

 

The judge must reflect the long-term beliefs of society. He must avoid imposing on society his private creed .... This requirement for objectivity places a heavy burden upon the judge. He must be able to distinguish between his personal view of the ideal and the present day reality of society. He must establish a clear division between his personal beliefs and his judicial perceptions. He must recognize that his personal beliefs may not be those of society at large. He must distinguish clearly between his personal credo and that of the nation. He must be self-critical and restrained in his views. He must respect the shackles that bind him as a judge (Efrat v. Director of Population Register, Ministry of Interior [51], at pp. 781-782).

 

Declaring a law unconstitutional is a serious matter. Such a declaration would seem to undermine the will of today’s majority. It may be justified by the supremacy of the constitution and its values. The justification applies when the judiciary gives expression to the values of society as they are understood by the culture and tradition of the people as it moves forward through history. This justification does not, however, operate when the judge expresses his subjective beliefs. Indeed, judicial objectivity is part and parcel of the basis of judicial review of constitutionality. In granting weight to different considerations, the judge aspires to the best of his ability to achieve judicial objectivity. He reflects neither his personal values nor his personal considerations. The judge reflects ‘the values of the State of Israel as a Jewish and democratic state’ (Eisenberg v. Minister of Building and Housing [52]). Indeed, this extremely difficult task can be achieved only by the professional judge, who has absorbed through years of experience the need to guarantee judicial objectivity, and enjoys total independence. As I noted in a previous case:

 

A professional judge is qualified to shoulder this burden. His education, his experience, and the judicial culture of his time internalize the values of independence and the ability to distinguish between personal views and the requirements of his position. None more than the professional judge is mindful of the limitations placed on him in a democratic society. “Do you imagine that I offer you rulership? It is servitude that I have offered you”‘ (Talmud Horayoth 10a-b (Efrat, supra, at p. 782)).

 

This charge may be undertaken only by a judge, whose outlook is that ‘judging is not a task but a way of life’ (HCJ 732/84 Tzaban v. Minister of Religious Affairs [53], at p. 148). It may be undertaken only by a judge, whose entire education brings him to abstract thought, which is based upon reason and not power, the weight of the claim and not the identity of the claimant. Only a judge, who daily experiences the tension between abstract principle and its operation in the mundane life of the litigant before him, may accomplish this difficult task. All of these require an independent judiciary, which develops from the people and reflects the basic social consensus, but does not stand for election every few years, as do Members of Knesset (see M. Perry, Morality, Politics and Law, (1988), at p. 147). In a similar vein, Professor Bickel has stated:

 

When the pressure for immediate results is strong enough and emotions ride high enough [legislators] will ordinarily prefer to act on expediency rather than take the long view ... Not merely respect for the rule of established principles but the creative establishment and renewal of a coherent body of principled rules – that is what our legislators have proven themselves ill equipped to give us. Judges have, or should have, the leisure, the training and the insulation to follow the ways of the scholar in pursuing the ends of government. This is crucial in sorting out the enduring values of a society ... [The court can] appeal to men’s better natures, to call forth their aspirations, which may have been forgotten in the moment’s hue and cry (A. Bickel, The Least Dangerous Branch, (1962), at pp. 24-26).

 

Indeed the judge neither wields a sword not controls the purse strings. All he has is his independence. His daily bread is none other than the basic values, which he balances objectively. He does not seek power, nor does he crave to rule. He does not seek to impose his personal views on society. He wishes only to do justice in the case before him and to adjudicate each case justly.

 

Since the establishment of the State of Israel, the High Court of Justice has stood – and with it the entire community of Israel – as the bastion of Israeli democracy. The words of Justice Berinson are well known: ‘the court is the most secure and objective refuge that the citizen has in his dispute with the establishment’ (HCJ 287/69 Miron v. Minister of Labour [54], at p. 362). This role was enhanced with the enactment of the Basic Laws regarding human rights. Additional bulwarks have been erected to protect these human rights. The court has been entrusted with the constitutional task of guarding the basic tenets and fundamental values of Israeli society as they are expressed in the Basic Laws (see Wellington, “Standards: Some Common Law Rules and Constitutional Double Notes on Adjudication,” 83 Yale L. J. (1973-74) 221). It must balance between the basic values of Israeli society (as they are expressed in the Basic Laws) and the short-term needs of day-to-day life (as they are expressed in regular legislation). It is entrusted with the task of ‘exposing the basic values while rejecting the temporary and transient’ (Efrat, supra, at p. 780).

 

f) Judicial review of constitutionality – Summary

 

82. Neither Basic Law: Freedom of Occupation nor Basic Law: Human Dignity includes an express provision – in the guise of a supremacy clause – addressing the fate of a law that infringes a protected human right without fulfilling the requirements of the Basic Law. This silence – against the background of the recognition, limitation and override clauses – calls into play the basic principles of Israeli law as to the relationship between superior and subordinate norms. These principles include the tenet that the superior norm reigns (lex superior derogat inferior). The court is competent to declare the contradicting norm void. In this manner the court gives expression to the ideals of democracy and the separation of powers. Indeed if the constitution itself is democratic, then judicial review is democratic.

 

On this basis we can now proceed to Basic Law: Human Dignity and Liberty, which serves as a superior norm, in light of which we will examine the provisions of the Family Agricultural Sector (Arrangements) (Amendment) Law, 5753-1993.

 

C. The Basic Law and the constitutional test derived therefrom

I)  Stages of the constitutional analysis

 

83. Basic Law: Human Dignity and Liberty defines human rights and sets out the limitations imposed upon them. The rights are defined in absolute terms (‘There shall be no violation of the life, body or dignity of any person’; ‘There shall be no violation of the property of a person’; ‘There shall be no deprivation or restriction of the liberty of a person’). The limitations imposed do not attach to the rights themselves, but rather are derived from the limitation clause. When a judge encounters a claim that legislation contravenes the directives of the Basic Law, he must conduct a three-phase examination: first, he must determine whether the law indeed infringes a protected human right. In order to do so, the judge must interpret the basic right on the one hand (constitutional interpretation), and the legislation on the other hand (statutory interpretation). The level of proof required is that required in a civil trial, i.e. a preponderance of the evidence or the balance of probability. If the judge concludes that the regular law indeed infringes the basic right, he must move on to the second stage of the examination. He must determine whether infringement of the basic right is lawful, i.e. whether the statute meets the requirements of the limitation clause. Here as well, the level of proof required is that required in a civil trial, i.e. a preponderance of the evidence or  the balance of probability (see R. v. Oakes [114], at p. 137). In order to meet this burden it is sometimes necessary to present a factual basis supporting constitutionality of the law. In some cases, common sense and life experience are sufficient in order to persuade the Court that the infringing law meets the requirements of the limitation clause. If the judge concludes that the infringing law does not meet the requirements of the limitation clause, he must then proceed to the third stage of the examination. In this phase the court examines the constitutional remedy. It goes without saying that human rights not safeguarded by Basic Law enjoy the same status accorded them before enactment of the Basic Laws. That certain human rights are anchored in a Basic Law does not detract from the force of the other human rights.

 

II) Burden of proof

 

84. Who bears the burden of proof in the three phases of the constitutional examination? There is no dispute that in the first phase – on which infringement of the constitutional human right is based – the burden of proof is borne by the party claiming injury to a constitutional right. A law is presumed to be constitutional (see HCJ 98/69 Bergman v Minister of Finance, supra, at p. 699), and the party who seeks to rebut this presumption bears the burden of proof. The question arises as to the second phase, which examines the constitutionality of the injury to the constitutional human right. It is commonly accepted that in this phase the burden of proof rests upon the party claiming that the injury was constitutional. This is the rule in Canada (see Hogg, Constitutional Law of Canada (3rd ed., 1992)) and New Zealand (see P. Joseph, Constitutional and Administrative Law in New Zealand (1993) at p. 861). The first decision of the constitutional court of South Africa adopted this view as to the infringement of human rights safeguarded in the new constitution of South Africa (see S. v. Mekwanyana [112]). This approach was adopted in the opinion of Justice D. Levin in the Clal case (HCJ 726/94, Clal Insurance Co. Ltd v. Minister of Finance [37], supra). On its face, this approach seems to me to be correct. It shifts the burden to the party that should and can bear it – the government. At the same time, this question does not arise in this appeal, and I am therefore prepared to reserve it for further consideration.

 

III) Constitutional examination and the old rule

 

85. The three phases of constitutional examination apply only to legislation enacted after the adoption of Basic Law: Human Dignity and Liberty. The old law is protected under the validity of laws clause, according to which:

This Basic Law shall not affect the validity of any law in force prior to the commencement of the Basic Law (s. 10).

 

Although the effect of the old law has been preserved, it must be interpreted in the spirit of the provisions of the Basic Law (cf. Section 10 of Basic Law: Freedom of Occupation; see also CrimApp 537/95 Ganimat v. State of Israel [38], supra). The validity of laws clause does not preclude the violation of any constitutional right. Neither does it provide that infringement of the Basic Law fulfills the requirements of the limitation clause. The clause does provide a constitutional umbrella for legislation that infringes the Basic Law without fulfilling the requirements of the limitation clause. This clause raises difficult questions. One of them is whether the clause applies to a new law (enacted after the Basic Law came into force) that amends an old law (in effect when the Basic Law came into force). This issue has been discussed extensively by my colleague President Shamgar and I agree with his analysis.

 

II) The first phase: the scope of the right and its infringement

a) The scope of the right

 

86. The scope of a right is determined by its interpretation. This is constitutional interpretation. It is sensitive to the unique character of the document under examination: indeed ‘it is a Constitution we are expounding’ (see McCulloch v. Maryland [96], at p. 407). ‘The interpretation of a regular provision is not the same as the interpretation of a basic constitutional provision’ (EA 2/84 Neiman v. Chairman of Central Elections Committee for Eleventh Knesset [8], at p. 306). The constitution is interpreted in accordance with the constitutional purpose. The constitutional interpretation must be made ‘from a “broad perspective”‘ (President Agranat in FH 13/60 Attorney-General v. Matana [25], at p. 442). The constitutional purpose may be discerned from language, history, culture and basic principles. A constitutional provision is not enacted in a vacuum and it does not develop in a constitutional incubator. It constitutes part of life itself. Justice Dickson noted as follows:

 

The purpose of the right of freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and, where applicable, to the meaning and purpose of other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be ... a generous, rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for the individuals the full benefit of the Charter’s protection. At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore ... be placed in its proper linguistic, philosophic and historical contexts (R. v. Big M Drug Mart Ltd [115], at p. 344).

 

Interpretation from a broad perspective is flexible rather than technical; it is substantive and to the point, rather than legalistic or pedantic (see Australian National Airways Pty Ltd v. The Commonwealth [83], at p. 81; Minister of Home Affairs v. Fisher [106], at p. 329). In the following case I discussed interpretation of a human right when it is given constitutional protection in a Basic Law:

 

Now that is has been given a constitutionally enacted basis, it must be interpreted from a “broad perspective” ... “and with the understanding that we are dealing with a directive that dictates a way of life ... we are dealing with human experience, which must suit itself to a changing reality... Therefore the constitutional directive must be interpreted “from a broad perspective” and not in a technical manner ... Hence arises the approach – accepted in enlightened democratic states – that constitutional directives must be interpreted “generously” ... from a “substantive” rather than a “legalistic” approach ... through an approach that treats of the specific issue rather than by a “technical” or “pedantic” approach… (HCJ 2481/93 Dayan v. Wilk [55], at p. 470).

 

In a similar spirit, Justice Strasberg-Cohen noted as follows:

 

The interpretation of a constitutional text must be undertaken from a “broad perspective” and “generously.” The approach should not be technical, “legalistic” or “pedantic”‘ (HCJ 1255/94 “Bezeq” – The Israeli Telecommunication Company Ltd v. Minister of Communications  [45], supra).

 

Indeed, constitutional interpretation must be based upon constitutional unity, and not upon constitutional disharmony. It reflects the role of the constitutional text in the structure of government and society. It endows it with the meaning that enables it to fulfill its role in the present and future in the most suitable manner (see HCJ 428/86 Barzilai v. Government of Israel [9], at p. 595).

 

b) The right to property

 

87. It is in light of this view of interpretation that we must approach the analysis of the constitutional right to property. This right is set forth in s. 3 of the Basic Law: Human Dignity and Liberty, which provides ‘[t]here shall be no violation of the property of a person.’

 

The right to property is thereby given constitutional status. This is an important right. ‘The right to property is the cornerstone of the liberal system. It occupies a central place in liberal ideology, as security for the existence of other rights’ (Lahav, “The Power and the Dominion: The Supreme Court in the First Decade of its Existence,” 14 Tel-Aviv University Law Review (Iyyunei Mishpat) (1989) 479, 498).

 

Nonetheless, the right to property – like the other rights set forth in the Basic Law – is not absolute. It may be infringed, so long as the infringing law fulfills the requirements of the limitation clause. Indeed, property has a “role” in both the private and public spheres. The Basic Law does not define ‘property.’ It is incumbent upon the Court to interpret this right according to its purpose (see Weisman, “Constitutional Protection for Property,” (1995), 42 HaPraklit 8). The word “property” has different meanings, depending upon the context in which it appears. It seems that in the constitutional realm, the basis of the right is the protection of possessions. Property is every interest that has a financial value. Thus property refers not only to “property rights” (in the sense accorded to them under private law – for example, ownership, leasing and easements) but also obligations and rights with property values acquired by public law. ‘The property referred to in the Basic Law is interpreted to include rights that are not property rights in the classic sense’ (Justice M. Cheshin in HCJ 7112/93 Tzudler v. Yosef [30]). Indeed, the right to property guarantees the individual financial freedom. It enables interpersonal cooperation. It enables a person to exercise the autonomy of his personal will. Hence the connection between the protection of property and the protection of human dignity (see J. Rawls, Political Liberalism, (1993), at p. 298). It follows that, in general, expropriation infringes property rights. Just compensation does not remove the infringement but it is likely to be constitutional if it fulfills the conditions of the limitation clause. And I note: the constitutional prohibition applies to the infringement of property. Every infringement violates the prohibition, and shifts the constitutional review to the limitation clause. At the same time, when the infringement of property is incidental or minor – if it can be classified as de minimis – then it will not be regarded as an infringement and there is no need to embark upon the constitutional review of the second phase (cf. Jones v. The Queen [116]). Theoretically it can be said that the right to property is infringed when the property value of an interest is less than its value before the legislation. At the same time, the regular day-to-day activities of the government may influence the value of an individual’s property. Should such activities be viewed as an infringement of property rights, calling for constitutional review under the limitation clause, or should their categorization as an infringement be precluded? We will deal with these questions in the future. I would therefore like to leave for further consideration the “siting” of the discussion that my colleague President Shamgar conducts regarding the enactment of the tax, and whether it ought to be included in the definition of the term “infringement.”

 

88. Determining the scope of the freedom of property is an important task imposed upon the judicial authority. In fulfilling this task it is, of course, appropriate to turn to comparative law. In this matter, a threefold “warning notice” is required. First, the constitutional structures of the various countries differ from one another. The structure of a constitution influences its interpretation. Thus, for example, the constitution of the United States does not protect property in the same way as does our Basic Law. The constitutional structure of the right to property in the American constitution arises from the prohibition against taking without just compensation, and applies to various arrangements that are not related to taking. Similarly the American system lacks an express limitation clause. This makes development of full protection of property difficult in the United States and complicates the constitutional law (B. Ackerman, Private Property and the Constitution, (1977), at pp. 3, 113, 189; Sax, “Takings and the Police Power,” 74 Yale L.J. (1964) 36). Second, the scope of the constitutional right is derived from society’s understanding of its importance. Thus, for example, in the United States – for a variety of historical reasons – constitutional protection of property has been given a relatively low status. Justice Frankfurter discussed this as follows:

 

Those Liberties of the individual which history has attested as the indispensable conditions of an open as against a closed society come to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements’ (Kovacs v. Cooper [97], at p. 95).

 

In contrast, the German system endows this right with primary status. It is viewed as a central right (see D.P. Currie, The Constitution of the Republic of Germany, (1944), at p. 290). In France, the constitutional right to property is safeguarded in the Declaration on the Rights of Man and Citizen of 1789 (s. 17). French constitutional rhetoric endows this right with great social value. In practice, however, significant infringements are permitted (see J. Bell, French Constitutional Law, (1992), at p. 176). Third, the status of the right, and the balance between the right and the general good is determined, inter alia, by society’s attitude toward the national interest and by the status of the State and the government. The American approach in this regard is unlike the French approach. And both the American and the French approaches differ from that of Israeli society. We see in the State the fulfillment of the dream of generations. Our attitude towards the State is not negative. We do not fear the State. Yet we must ensure that the State does not harm the individual. The balance between individual and community therefore reflects the unique outlook of Israeli society. Great caution is therefore required in considering comparative law in this particular area. However, comparative law is of great importance. It reveals the possibilities concealed in the text. It sheds light upon the arrangements accepted in constitutional democracies. It gives the judge confidence that his interpretation is accepted and functions well in other places. Nonetheless, we must be careful not to transform the servant into a master. We must not enslave ourselves to comparative law. Its strength is in its ability to inspire, and this power is limited. Indeed, we must bear in mind the social and cultural differences between the various communities. We must consider the unique history of the legal system and the different emphases given to particular issues. The words of Justice Holmes in this regard are apt: ‘A page of history is worth a volume of logic’ (New York Trust Co. v. Fisher [98], at p. 349). This is especially so when discussing protection of property, an issue that in most legal systems is immersed in history and social change. Thus, the uniqueness of the right of property in the Israeli constitutional fabric must be determined according to its place in the system of human rights in Israel.

 

 

III) The second phase: the limitation clause

a) The importance of the clause and the relativity of the human right

 

89. The limitation clause (s. 8) of the Basic Law: Human Dignity and Liberty is a key ingredient in the protection of human rights. It delineates the limits of the right and the limitations upon the legislature. The role of the limitation is twofold. It protects human rights and licenses their infringement, at one and the same time. It expresses the notion of the relativity of human rights. It reflects the basic outlook that human rights exist in a social context that maintains them. It mirrors the underlying view that human rights do not view the individual as an island, but as part of a society with national goals. It is the product of the recognition that while basic human rights must be realized, the national framework must be protected as well. It is intended to permit infringement of human rights in order to maintain the social framework that itself protects human rights. Indeed, the constitutional right and its lawful infringement emanate from the same source (R. v. Oakes [114], at p. 135). Both the constitutional right and its limitation are subject to the same basic principle underlying Basic Law: Human Dignity and Freedom (s. 1) and its purposes (ss. 1A and 2). The limitation clause provides the foundation for the constitutional balance between private and public, individual and community. It reflects the viewpoint that alongside human rights there are human obligations; that the normative world is not only one of rights but also of obligations; that alongside each right of a human being stands his duty to the community.

 

b) The elements of the limitation clause

 

90. The limitation clause provides four cumulative tests that determine the constitutionality of a law that violates a constitutional human right. The four tests are as follows:

(a) the infringement is made by law or in accordance with law and by means of an express authorization;

(b) the infringing law must be consistent with the values of the State of Israel;

(c) the infringing law must be intended for a proper purpose;

(d) the law may infringe the human right to an extent no greater than is required.

 

In the future, the Supreme Court will be required to define each of these tests. Thus, for example, the requirement that the violation be by law or according to law reflects the principle of legality (see Garibaldi, “General Limitations on Human Rights: The Principle of Legality,” 17 Harv. Int. L. J. (1976) 503. This principle is not merely formal in nature (see Sunday Times v. United Kingdom [107], at pp. 245, 270). The second test refers to the values of Israel as a Jewish state (in the context of both Jewish tradition and Zionism) and as a democratic state. Indeed, we are different from other nations. We are not only a democratic state but also a Jewish state. The Basic Law comes to ‘establish in a Basic Law the values of the State of Israel as a Jewish and democratic state’ (s. 1A) (see Elon, “The Way of Law in the Constitution: The Values of the Jewish and Democratic State in Light of the Basic Law: Human Dignity and Liberty,” 17 Tel-Aviv University Law Review (Iyyunei Mishpat) (1993) 659). One of the important innovations of the Basic Law is its provision that ‘[t]he purpose of the Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state’ (s. 1). Those values were thereby given constitutional supra-legislative status. The meaning of the values of the State as a Jewish and democratic state, and a solution to the clash between those values, will certainly occupy us greatly in the future.

 

‘A proper purpose’

 

91. The third element of the limitation clause requires that the purpose be fitting. This element, too, raises significant difficulties, which we may reserve for future consideration. In essence, a purpose is fitting if it serves an important social objective regarding human rights. Thus, legislation intended to protect human rights is certainly intended for a proper purpose. Legislation intended to serve general social goals, such as welfare policies or protection of the public interest is fitting as well. In American constitutional law, distinctions are drawn among the various human rights in determining whether a purpose is worthy. The courts there have created different levels of constitutional scrutiny. Thus, for example, when the injury is to freedom of movement, freedom of expression or racial equality, the highest level of scrutiny applies. In such cases, a purpose will be deemed fitting if it is intended to fulfill a compelling state interest or a pressing public necessity or a substantial state interest. When the harm is gender or age-based discrimination, an intermediate level of scrutiny applies. In such cases the purpose will be deemed fitting if it serves an important governmental objective. The third and lowest level of scrutiny applies when the injury is to economic rights. Here the true test is whether the objective is reasonable.

 

In contrast to the three levels of American law, Canada has developed a unified test. The purpose of the law is fitting if it is directed towards social needs of fundamental importance. It is premature to determine what the Israeli rule will be as to the limitation clause and whether our test should comprise a single level (as in Canada) or multiple levels (as in the United States). It seems to me that for the purposes of the matter before us it is sufficient to determine that the purpose is fitting if it is intended to fulfill important social goals for the establishment of a social framework that recognizes the constitutional importance of human rights and the need to protect them. The normative scope of this importance will be determined with time, in the decisions of the Supreme Court.

 

92. In analyzing the nature of the “proper purpose” my colleague President Shamgar notes that this purpose includes that which was apparent to the legislature (‘the Court examines the purpose that guided the legislature’) as well as that determined by the Court at the time of its opinion (‘it may also become apparent at the time of examination of the final draft of the law and its ramifications’). My colleague notes furthermore that as to determining the purpose that was apparent to the legislature ‘there is a presumption that the legislature acted in good faith, and in any event we must not search for the concealed motives of individuals making up the legislative branch, in contrast to the purpose considered by the legislature as a collective legislative organ’.’ Finally, my colleague notes that the purpose of the law is weighed ‘against the violation and its significance.’ This position raises a significant number of problems, which, in my opinion, may and should be reserved for further consideration. My colleague suggests that two ‘purposes’ be examined – that which was apparent to the legislature and that which is revealed to the Court. There are different positions as to this approach in the comparative literature. There are those who believe that, in determining the constitutionality of a law – as in determining the constitutionality of a regulation (when it is claimed that the regulation was adopted out of improper motives) – we must consider only the historic purpose that was before the legislature. Others believe that we must consider both the historic and the modem purposes. Furthermore, if we consider the subjective purpose, we are faced with the problem of examining the legislature’s motive. My colleague the President states that ‘we must not search for the concealed motives of individuals making up the legislative branch, in contrast to the purpose considered by the legislature as a collective legislative organ.’ We must, of course, agree with this. Should we, however, consider the expressed motives of the Members of Knesset? There are differences of opinion as to this issue in the comparative constitutional literature. How can it be proven that legislation was impelled by improper motives (such as discriminatory motives) if we do not permit examination of the motives? Of course, more difficult questions arise as to the means of proof. Finally, my colleague emphasizes the purpose and adds, obiter dictum, that the purpose is balanced ‘against the violation and its significance.’ Here as well, serious problems arise. Some believe that only the purpose is significant and the harm itself should not be considered. An invalid motive invalidates the legislation even if the result is positive. Others believe that the determinant is the effect of the legislation and not its purpose (With regard to all these issues, see Ely, “Legislative and Administrative Motivation in Constitutional Law,” 79 Yale L.J. (1970) 1205; Brest, “Palmer v. Thompson: An Approach to the Problem of Unconstitutional Legislative Motive,” Sup. Ct. Rev. (1971) 95; Alexander, “Introduction: Motivation and Constitutionality,” 15 San Diego L. Rev. (1978) 925). As noted, these questions are difficult – some of the most difficult in constitutional law. We have no experience in dealing with them and I therefore suggest that they be reserved for further consideration.

 

‘To an extent no greater than is required’

 

93. The final element of the limitation clause is that the injury to the human right must be to an extent no greater than is required. If the previous factor examines the motives of the infringing legislation, this factor examines the means chosen by the legislature. This is a proportionality test. This test examines whether the means chosen by the legislature are appropriate for achieving its objectives (the proper purpose). In the past we have made use of the doctrine of proportionality in the field of administrative law (see HCJ 5510/92 Turkeman v. Minister of Defense [56], at p. 217; HCJ 987/94 Euronet Golden Lines (1992) Ltd v. Minister of Communications [57]; HCJ 3477 Ben-Atiya v. Minister of Education, Culture & Sport [58]; HCJ 1255/94 “Bezeq” – The Israeli Telecommunication Company Ltd v. Minister of Communications [45], supra; see also Segal, “The Claim of Lack of Relativity in Administrative Law,” 39 HaPraklit (1991) 507). It has now been given constitutional status. The constitutionality of a statute will now be examined in light of the doctrine. In comparative law too, this test began its development as a test used in administrative law. It is most accepted in European administrative law (see J. Schwarze, European Administrative Law (1992), at p. 677). The doctrine developed particularly in German administrative law (see Zamir, “Israeli Administrative Law in Comparison to German Administrative Law,” 2 Mishpat uMimshal (1994) 109, 130; and Sing, German Administrative Law (1985), at p. 88; Nolte, General Principles of German and European Administrative Law – A Comparison in Historical Perspective, 57 Mod. L. Rev. (1994) 191). From there it moved to the constitutional law of most of the countries of Europe, and elsewhere as well. It is the central test in Canada (see Hogg, Constitutional Law of Canada, (3rd ed., 1992), at p. 875, as well as in South Africa under its new constitution (see S. v. Makwanyana [112], at p. 665)).

 

94. A law infringes a protected human right. The law accords with the values of the State of Israel. It is intended for a proper purpose. How must we decide whether the law infringes human rights ‘to an extent no greater than is required?’ When does a law that infringes a constitutional human right achieve the required proportionality? In comparative law an attempt was made to concretize the principle of proportionality. It seems to me that we should learn from this attempt, which is common to Canada, Germany, the European Community and the European Court for Human Rights in Strasbourg, for the principle of proportionality does not reflect a unique social history or particular constitutional position. Rather, it is a general analytical position according to which we may examine a law infringing constitutional human rights.

 

95. Comparative law indicates that the examination of the “extent necessary” is divided into three sub-tests. The first sub-test determines that a legislative means that infringes a constitutional human right is fitting if it is appropriate to achieving the purpose. This is the fitness test (geeignt), or the “rational relationship” test. There must be a suitable connection between the goal and the means. The means must be tailored to achieve the objective. The means must lead, in a rational manner, to fulfillment of the goal. The second sub-test establishes that the legislative means that infringe the constitutional human right are fitting only if the goal cannot be achieved by other means that would result in a lesser injury to the human right. This is the middle test of “minimal harm” It is sometimes described as the “principle of need.” The third sub-test requires a balancing of the public good against the private harm arising from the means. There must therefore be a suitable relationship between the means and the purpose (“proportionality in the strict sense”). These three sub-tests were nicely summarized in the leading Canadian case, as follows:

 

There are, in my view, three important components of a proportionality test; first the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should infringe “as little as possible” the right or freedom in question ... Third, there must be a proportionality between the effects of the measures, which are responsible for limiting the Charter right or freedom and the objective which has been identified as of “sufficient importance” (R. v. Oakes [114], at p. 138).

 

It must be noted that the second sub-test is the most important of the sub-tests for proportionality. That the protected right be infringed as little as possible is the very essence of the requirement that the means be to an extent no greater than is required. This requirement is also textually connected. Indeed, in many cases the purpose is fitting and there is a rational relationship between the purpose and the means chosen. The determining question centers upon the question of whether the legislature chose the means that would result in the most minimal injury. In this regard, the image of rungs on a ladder is commonly employed. The Court determines whether the legislature chose the lowest rung of the ladder. This is the “step theory” (stufentheorie) (see D. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany, (1989), at p. 290). In the Pharmacy case [110] – dealing with a limitation of the freedom of occupation – the German constitutional court adopted the theory of steps or rungs. The court determined that infringement of the freedom of occupation can be permitted:

 

[O]nly to the extent that the protection cannot be accomplished by a lesser restriction of freedom of choice. In the event that an encroachment on freedom of occupational choice is unavoidable, lawmakers must always employ the regulative means least restrictive of the basic right’ (translation by Kommers, ibid., at p. 288).

 

Constitutional latitude

 

96. The limitation clause imposes upon the Court a difficult task. It requires sensitivity to the necessity of balancing between the rights of the individual and the public interest. It requires the judge to understand his constitutional role. The directives of the limitation clause may be fulfilled in various ways. A type of ‘limitation margin’ is created (similar to the margin of reasonableness) or ‘margin of harm.’ The Court must protect the boundaries of that margin. It must refrain from crossing the margin. The choice between the various possibilities that lie within the bounds of the margin rests in the hands of the legislature. The principle of the separation of powers places the task of choosing – the task of lawmaking within the margin – upon the legislative authority. The legislature is endowed with the power to choose between the various policy options that fulfill the directives of the limitation clause. The question that the judge must ask himself is not what law would he have enacted, had he been a member of the legislature, in order to properly balance private and public needs. The question that the judge must ask himself is whether or not the balance chosen falls within the limitation margin. The Court must determine the constitutionality of the law, not its wisdom. The question is not whether the law is good, efficient, or just. The question is whether the law is constitutional. A “socialist” lawmaker and a “capitalist” lawmaker may enact different and contradictory laws, all of which fulfill the requirements of the limitation clause. The legislature must be accorded a “margin of appreciation” or “latitude for discretion” along the boundaries of the limitation zone. There must be reasonable room to maneuver, enabling the legislature to use its discretion in choosing between (a proper) purpose and means (that infringe to an extent no greater than is required). Every lawmaker has reasonable room to maneuver (see Hogg, ibid., at p. 882; Van Dijk and Van Hoof, Theory and Practice of the European Convention on Human Rights, (1984), at p. 585). I discussed this in the matter of the administrative authority, as follows:

 

In applying the principle of proportionality – particularly in examining the means causing the least harm – we must recognize the latitude given to the governmental authority. There are a number of ways in which the proportionality requirement may be fulfilled. Often the matter is borderline. In such cases, the authority’s margin of appreciation must be recognized. This margin is similar to the executive authority’s margin of reasonableness.... This recognition of the governmental margin of discretion is based upon the institutional advantage that the governmental authority enjoys in examining the possible alternatives, and in fulfilling its national responsibility – a responsibility imposed by the principle of separation of powers – to implement the proper purpose (Ben-Atiya v. Minister of Education, Culture and Sport [58], supra).

 

These words apply with even greater force when the applicable governmental authority is the legislature. Indeed, the determination of social policy – on economic and other matters – is in the hands of the legislature, and the legislature must be given broad legislative latitude. The Court does not determine social policy. That is a matter for the legislature. But if the policy is not constitutional, that is a matter for the Court. Indeed, if the lawmaker deviates from the boundaries of the limitation, there is no recourse but to take a clear judicial stance. In criticizing the American approach to economic rights – which leaves it to the legislature, as the expert in this area, to determine the content of the law without the Court’s constitutional intervention – Tribe writes:

 

But such a belief would hardly justify wholesale abdication to the political process since there exists no type of legislation that can be guaranteed in advance to leave important constitutional principles unimpaired, and there is simply no way for courts to review legislation in terms of the constitutional without repeatedly making difficult substantive choices among competing values, and indeed among inevitably controverted political, social, and moral conceptions. Nor can it suffice to dismiss constitutional review of socioeconomic regulation as uniquely ‘political’; all significant constitutional judgments ... are inescapably political (L.H. Tribe, American Constitutional Law (Mineola, second edition, 1988), at pp. 583-584).

 

97. My colleague the President has cited Professor Hogg’s approach, according to which the various rights should be given a narrow interpretation in order to ensure a careful examination of the legislation in the context of the limitation clause. Professor Hogg reached this conclusion after the experience of some ten years in the interpretation of the Canadian Charter of Rights and Freedoms. On its face, it seems to me that this approach is unsuitable. It will ultimately lead to constriction of the right as well as to laxity in guarding against its infringement. At the same time, it seems to me too early at this point to reach any conclusion in the matter of our Basic Law. The case law should be allowed to develop without a priori declarations that certain provisions must be given a broad interpretation while other provisions must be interpreted narrowly. Each provision should be given the interpretation that will fulfill the objective upon which it is based.

 

98. In addressing the question of whether a piece of legislation violates a protected human right to an extent no greater than is required, it is sometimes necessary to examine alternative means. Thus, just as the proportionality test requires that the Court examine the various alternatives that present themselves to the administrative authority, so the Court must examine the various alternatives that were available to the legislature. This is not a task that is beyond the Court’s ability. Constitutional examinations of this nature are undertaken in many countries around the world. ‘Social facts’ and “legislative facts” are brought before the competent court as evidence of the various alternatives. In describing these facts, Hogg notes as follows:

 

Legislative facts are the facts of the social sciences, concerned with the causes and effects of social and economic phenomena. Legislative facts are rarely in issue in most kinds of litigation, but they are often in issue in constitutional litigation, where the constitutionality of a law may depend upon such diverse facts as the existence of an emergency, the effect of segregated schooling on minority children, the relationship between alcohol consumption and road accidents, the susceptibility to advertising of young children, or the effect of pornography on behavior (Hogg, op cit., at p. 1292).

 

Evidentiary foundations of this type are presented every day around the world to courts dealing with constitutional problems. Upon this foundation the Court decides, always cognizant that it is not the lawmaker, and that policy is determined by the lawmaker and that the lawmaker is given a wide latitude in which to maneuver. Anyone who reviews the opinions of courts treating of constitutional determinations has studied the wealth of evidentiary material brought before the courts, as well as the courts’ ability to grapple with such problems. In the United States, this practice has been recognized since the beginning of the century. It is known as the “Brandeis Brief,” after the author of the first systematic and scientific document to be submitted to the Court in reliance upon research tools from the field of social sciences. The Court expects the parties – particularly the party bearing the burden of proof – to present an evidentiary foundation that will enable the Court to decide whether the requirement that the legislation be only “to the extent necessary” has been fulfilled. There is substantial literature on this subject throughout the world (see Karst, “Legislative Facts in Constitutional Legislation,” Sup. Ct. Rev. (1960) 75; Baade, ‘Social Science Evidence and the Federal Constitutional Court of West Germany,’ J. Politics (1961) 421-423). Justice La Forest has discussed this, noting as follows:

 

I must underline as strongly as I can the importance of producing evidence ... One of the major challenges in a s. 1 analysis is to identify and weigh the rights or interests served by a provision impugned as violating a guaranteed right. Particularly in areas outside the ordinary ken of lawyers, evidence will be required to enable courts to deal with the issue at all (La Forest, “The Balancing of Interests Under the Charter,” II N.J.C.L. 133, 143).

 

In order to fulfill its obligation, the Court and the lawyers appearing before it must develop additional skills, which will enable them to grapple with the “social facts.” Antonio Lamer, Chief Justice of the Supreme Court of Canada, discussed this, noting that the constitutional revolution in Canada in the field of human rights requires the Court and the lawyer to grapple with a new sort of evidentiary foundation:

 

These developments require lawyers and judges to have a whole new range of skills. We need to be able to look intelligently to questions of social policy, to identify the sorts of expertise that the particular problem requires, to deal with material from a wide range of disciplines and to interact effectively with persons who possess many sorts of expertise. In addition to the traditional technical skills of the lawyer, we need a deep understanding of the most fundamental principles of the law, an understanding which is broad enough to relate to a wide variety of other disciplines (Lamer, “Canada’s Legal Revolution: Judging in the Age of the Charter of Rights,” 28 Isr. L. Rev. (1994) 579, 581).

 

Chief Justice Lamer further notes that the courts of Canada developed judicial techniques in order to deal with social facts:

 

Courts now are routinely receiving a good deal of what can be referred to as social fact evidence. This sort of evidence is often directed to questions of what is the impact of legislation on society and what would be the impact of alternative ways of confronting the social problem. This kind of evidence is like that which is relevant in proceedings before a Parliamentary Committee when proposed legislation is being considered. Particularly where the question is whether certain laws are justified in a free and democratic society, debate in the Courts sometimes resembles proceedings before a House Committee in that the benefits and burdens of the legislation and its alternatives have to be weighed in light of the best available information about the needs of society and the nature of the problem addressed (ibid., at p. 582).
 

Just as the courts and lawyers in Canada can undertake such an investigation, so can we. Of course we must always remember that the legislature is endowed with legislative room to maneuver; that the question is not what is the ideal legislative arrangement, but what is the legislative arrangement that can be expected in the context of the Israeli constitutional regime as a whole; that the Court does not determine the constitutional paradigm that it deems best but examines the constitutionality of the legislative formula established by the legislature; that in marginal cases, the legislature must be given reasonable latitude in its legislative choice. The court must be convinced that among the available legislative options, the legislature chose that which least infringed the constitutional right. What is demanded is not an ideal choice.

 

D. The Family Agricultural Sector (Arrangements) (Amendment) Law 5753-1993

I) Application of the Basic Law: Human Dignity and Liberty

 

99. The Family Agricultural Sector (Arrangements) (Amendment) Law 5753-1993 (hereinafter, the “Amended Sector Law”) was enacted after the Basic Law: Human Dignity and Liberty came into effect. Accordingly, the validity of laws clause does not apply to this law. In this matter I agree with President Shamgar’s position. Of course, the original law – which was enacted before the adoption of Basic Law: Human Dignity and Liberty – is not subject to constitutional review. It enjoys the normative protection accorded to established law by s. 10 of the Basic Law.

II) The first phase: does the Amended Sector Law infringe a constitutional right?

 

The first constitutional question that arises is whether the Amended Sector Law infringes the right of property. In my opinion there can be no doubt that the answer to this question is affirmative. The Amended Sector Law infringes the ownership rights of creditors. It permits cancellation of unpaid debt, thereby infringing the property rights of the creditors. The infringement is not trivial – whether the debt is significant or insignificant, the creditor’s right is infringed. We must therefore determine whether the infringement of the property right is lawful, i.e. whether it fulfills the requirements of the limitation clause.

 

III) The second phase: whether the Amended Sector Law fulfills the requirements of the limitation clause

a) ‘The law’; ‘the values of the state of Israel’

 

101. Does the Amended Sector Law fulfill the conditions of the limitation clause? It has not been contended that infringement of the property right is not ‘by law.’ This condition has therefore been fulfilled. Is the Amended Sector Law consistent with the values of the State of Israel as a Jewish and democratic state? The question is whether the new law, which provides for cancellation of debt – essentially, an extensive bankruptcy arrangement – in order to liberate the agricultural sector from potential ruin by imposing the burden upon the creditors, is consistent with the values of the State of Israel. My colleague answers this question affirmatively. I share his opinion, and for the same reasons.

 

102. My colleague the President criticizes the lower court (in LCA 1908/94 and 3363/94) for not having properly considered the court’s role in determining whether legislation is consistent with the values of the State of Israel. My colleague writes as follows:

 

The court does not sit in judgment in order to administer the State economy. It does not rewrite the law. It does not transform secondary into primary in order to determine that legislation that it deems defective or otherwise wanting  is inconsistent with the values of the State of Israel. The court is not called upon to declare what, in its opinion, would be a more fitting or enlightened legislative solution. The court is called upon to determine, in the context of s. 8, whether the subject statute, according to its general purpose, is grosso modo consistent with a Jewish and democratic state.

 

It is certainly true that the court does not administer the State economy. But the court is required to determine whether the legislation by which the State economy is administered is consistent with the values of the State of Israel as a Jewish and democratic state. Consider legislation controlling administration of the media, which, it is claimed, infringes freedom of expression. The court does not administer the media, but must determine whether legislation infringing freedom of expression is consistent with the values of the State of Israel as a Jewish and democratic state. Or consider legislation providing for the manner of execution of judgments, which, it is claimed, infringes the debtor’s freedom or the creditor’s property rights. The court must examine such claims. In these cases, there is, of course, no call for the court to rewrite the law, or to transform the primary into the secondary or vice versa. Nor is the court asked to give its opinion on the wisdom or justice of the legislative solution. Nonetheless, the court is required – and cannot be freed of this requirement – to determine whether the legislation is consistent with the values of the State of Israel. My colleague President Shamgar quotes the opinion of Justice Black in the case of Ferguson v. Skrupa [88]. This opinion must be understood in the context of the historical development of Supreme Court’s approach to substantive due process and the case of Lochner v. New York [99] (see J. E. Nowak and R. D. Rotunda, Constitutional Law (4th ed. 1991), at p. 362). This history is foreign to us. The American distinction between basic rights (regarding which constitutional scrutiny is strictest) and the economic freedom of the state (regarding which constitutional scrutiny is most lenient) does not accord with our constitutional structure, in which freedom of occupation, one of the basic human rights, enjoys the same constitutional status as other human rights. The trauma experienced in America as a result of the Lochner case [99] must not bring Israeli law to a standstill. We must, over the course of the years to come, adopt a comprehensive constitutional philosophy, based upon the values of the State of Israel as a Jewish and democratic state. We must determine whether in the context of the limitation clause, different levels of scrutiny should be developed (as to the nature of the appropriate purpose and means) for the different rights, or whether we should adopt a uniform level of scrutiny.

 

103. My colleague President Shamgar criticizes the determination of one District Court that the Amended Sector Law is not consistent with the values of the State of Israel because it applies only to moshavim (and not to kibbutzim). In the President’s opinion, this determination is ‘an example of a misguided basic approach, according to which only if the scope of the general application of the law meets the court’s satisfaction, can it be concluded that it is consistent with the values of the State of Israel.’ My colleague notes further that ‘economic legislation resulting from economic policy determines the scope of its application in light of the legislature’s discretion and in light of various economic factors that are not within the court’s knowledge or expertise. This is not why the court was given the power of constitutional review.’ My colleague cites in this context ‘the decision of the Canadian legislature not to include in the constitution the subject of infringement of property.’ In my opinion, this criticism is too general and too sweeping. The key point is that in Israel, unlike Canada, the right to property is a constitutional right. The court is charged with protecting the right to property, just as it is charged with protecting other constitutional rights. We have not yet been presented with the question of whether all rights enjoy constitutional protection of the same magnitude or whether the level of protection varies according to the nature of the right. It is too early to take a stand on this important question. In principle, the District Courts acted properly in taking into consideration the principle of equality as one of the values of the State of Israel as a Jewish and democratic state, and in examining the legislation before us in light of that principle. At the same time, I agree with my colleague the President that in the case before us – after extensive consideration – it cannot be said that the arrangements in one sector inherently discriminate against other sectors.

 

b) A proper purpose

 

104. A law infringing a constitutional human right protected by the Basic Law: Human Dignity and Liberty is constitutional only if it is intended for a proper purpose. My colleague the President has deemed as fitting the purpose for which the Amended Sector Law was enacted. I agree with this conclusion. Whether we take a subjective approach to this analysis (legislative intent) or whether our approach is objective (legislative purpose), the purpose is fitting according to both criteria. The purpose is to ensure the rehabilitation of certain debtors and to prevent the collapse of their life’s work. This is a sort of emergency legislation intended to protect the existence of the moshav members. This purpose was intended to fulfill an important social goal. It is similar to the legislation in regard to cancellation of debt in bankruptcy. It expresses the policy of the welfare state. It recognizes the constitutional importance of the protection of human rights, and the need to protect them (debtors and creditors). It seems to me that this proposition is sufficient for the appeals before us.

 

c) To the extent necessary

 

105. As we have seen, an examination as to whether the legislation infringes the constitutional right “to an extent no greater than is required” includes three sub-tests. The first test is of “fitness” or “rational relationship.” It is met in our case. The second sub-test is the test of “the 1east intrusive means” or the “needs” test. The law infringes the basic right to an extent no greater than is required if the legislature chose – from the array of means available – the means that infringed the protected human right to the least extent possible. The legislature must begin at the “rung” that does the least harm, and slowly ascend, until it reaches the rung at which the proper purpose can be achieved without infringing the human right more than necessary. In determining the appropriate level we must bear in mind that the legislature has been accorded reasonable legislative latitude. The court must demonstrate flexibility and must recognize the difficult choices faced by the legislature, the effect of its choice on the various sectors of society and the institutional advantage enjoyed by the legislature in examining these factors.

 

106. Does the Amended Sector Law infringe creditors’ rights more than to the extent necessary? Or does this law fall within the bounds of the wide latitude given to the lawmaker? The Attorney-General has described the dilemma that faced the legislature. This dilemma is expressed in the Explanatory Note to the proposed Family Agricultural Sector (Arrangements) Law (Hatzaot Hok (Draft Laws), 1992, at p. 92):

 

The proposed law is intended to create a new framework in order to solve the crisis that has loomed over the agricultural sector for quite some years. Its general purpose is to facilitate rehabilitation of the agricultural sector by favoring rehabilitation over dissolution, while at the same time stemming the outflow of money from public coffers. It now seems that circumstances require legislative intervention in presenting a settlement arrangement to the agricultural sector since the various other settlements did not prove to be effective, left the agricultural sector in deep crisis and, at times, exacerbated the situation.’

 

In this context, the 1987 settlement (the “Ravid Settlement”) has been cited, according to which an administration was established which was to determine an arrangement for settling the bank debt of each moshav. Participation was voluntary for debtors and those non-bank creditors who signed the agreement, which included “‘veto rights” for each party as to the administration’s determinations. We have been told that because of the voluntary participation clause and the veto rights, the Ravid Settlement did not succeed, and by its terms only some 30% of the debts of the agricultural sector were settled (approximately one and a half billion shekels). Against this background, there was no alternative to the legislative solution. This solution is based upon ‘radical treatment of the crisis facing the Israeli agricultural system’ (Attorney-General’s Response, at p. 13). Under this “radical treatment” a “receiver” was appointed in order to analyze the debt of the moshav and its members, and to formulate a rehabilitation plan taking into account the debtors’ repayment ability and the magnitude of remaining debt. Against this background – and in light of the experience of the original law – a number of legal questions arose, which the Amended Sector Law attempted to solve, and which my colleague President Shamgar noted in the introduction to his opinion. The Attorney-General contends that these amendments do not exceed the extent necessary, and that they fall within the bounds of legislative latitude. In this regard, the Attorney-General notes that ‘it is clear that the crisis continues’ and demands an expeditious solution. The Attorney-General notes, as well, that the harm does not exceed the extent necessary ‘when, in effect, we are dealing with a creditor arrangement that comes to replace other acceptable arrangements such as bankruptcy, liquidation and dissolution under which creditors’ rights can be infringed’ (ibid., at p. 61). Against this background the Attorney-General contends that ‘the infringement does not exceed the extent necessary, when the infringement itself is unclear, i.e. to what extent can the creditor collect its claim if it is not included within the scope of the law and, on the other hand, infringement of the legislative purpose without the amending law is certain’ (ibid., at p. 62). The Attorney-General emphasized that:

 

The legislature’s efforts to save the agricultural-moshav sector by permitting certain damage to creditors come after attempts to solve the crisis in various ways, both by means of assistance from State and Jewish Agency funding sources and by means of voluntary settlement arrangements. After all of these attempts failed, the legislature enacted the main law, the motive of which was finally to settle the debts of the agricultural sector. The main law is not before the Court today, nor are the clauses of section 15 as to automatic reduction, which is the primary infringement of the main law. Before the Court are the relevant provisions of the amending law, which do not cancel the creditors’ right to collect or sue for collection of the debt, but rather propose a different settlement, which may infringe the possibility of collecting part of the debt. In this situation, when the lawmaker’s intention and purpose are to rescue the agricultural sector and assist in its rehabilitation, the legislature’s choice was made in the context of its “broad legislative latitude.”

 

Alternatively, the Attorney-General requested that – if we are unconvinced that the means chosen do not exceed the extent necessary –

[T]he Court allow submission of a factual and legal foundation in order to prove that the conditions of the limiting clause have been proven, in light of the fact that we are dealing with the invalidation of legislation. The lower court’s decision should not be left in effect merely because the Court was not presented with enough evidence (ibid., at p. 66).

 

107. Against this background, the question before us is whether or not we are convinced that the legislature enacted measures that do not exceed the extent necessary, and, whether or not this instance falls within the bounds of the broad legislative discretion given to the legislature. I have given considerable thought to this question and contemplated the possibility of granting the Attorney-General’s alternative request to return the case to the District Court for renewed consideration. In the end, I am convinced that this is a borderline case that falls within that area permitting the lawmaker to design a legislative arrangement at its discretion, and that further analysis of the “social facts” is not justified. In light of the proper purpose which deals with solving the deep crisis into which the agricultural sector has fallen – it seems to me that the means chosen by the legislature in the Amended Sector Law does do harm to creditors, but that this harm does not exceed the extent necessary and, in any event, falls on the lawful side of the fence. In reaching this conclusion I considered the possibility of voluntary settlement and concluded that it is not a viable alternative (in light of the failed attempt). Similarly, I considered other legislative arrangements proposed by the parties, which must be rejected in the absence of any relevant supporting analysis. In the end, we are left with the legislative arrangement chosen by the Knesset after consideration and examination, and I have not found – after taking the relevant considerations into account – that it goes beyond the domain to be left within the discretion of the legislature in a democratic society. In this regard I have also given weight to the fact that we are dealing with the first instances to come before the courts, and that, in the absence of constitutional experience, the existing evidentiary potential was not realized, nor were all the social data in the hands of the State presented in order to prove its contentions.

For these reasons I concur with the conclusion of my colleague the President that the appeals in HCJ 1908/94 and HCJ 3363/94 should be granted and that the cases should be returned to the lower court for continued review as to the matter itself. Similarly, for these reasons I concur in denying the appeal in HCJ 6821/93. In light of my position, I propose that there be no order of costs.

 

Summary

 

108. I have therefore reached the following three conclusions: First, that Basic Law: Human Dignity and Liberty is accorded constitutional supra-legislative status; that this conclusion may be reached in a number of ways and that choosing among them is not necessary for this appeal, although the position that seems to me most fitting is that which recognizes the Knesset’s power to enact a constitution for Israel at the highest normative level (constituent authority); that this Basic Law constitutes a superior norm, in light of which we must examine the constitutionality of ‘regular’ legislation that infringes a constitutional human right protected by the Basic Law, and that the Basic Law may be amended only by Basic Law. Second, that a “regular” law adopted by the Knesset (by whatever majority) cannot infringe a human right protected by the Basic Law unless it fulfill the requirements of the limitation clause. If a “regular” law does not fulfill those requirements it is unconstitutional, whether it explicitly state its intention to infringe a human right protected by the Basic Law, or whether the infringement be implicit. Third, that the Court in Israel is endowed with the power of judicial review of the constitutionality of a law. It must examine (in the first stage) whether the “regular” law (adopted after the enactment of the Basic Law) infringes a protected human right. The Court must determine (at the second stage) whether the infringement fulfills the requirements set out in the limitation clause. If the Court reaches the conclusion that a basic right has been infringed, without the requirements of the limitation clause having been met, it is empowered to prescribe constitutional remedies, among them declaring the law (or part thereof) void. Fourth, that the provision of Basic Law: Human Dignity and Liberty according to which ‘property rights shall not be infringed’ is to be interpreted to include obligatory rights, and therefore legislation that diminishes the right of a creditor to claim his debt violates his right to property. Fifth, that the limitation clause – in requiring that the law infringe a human right to an extent no greater than is required – imposes a test of proportionality, composed of three ancillary tests: rational relationship, need and proportionality (in its narrow meaning), while recognizing the legislature’s broad legislative discretion. Finally, that in the appeals before us, we are convinced that the infringement of the creditors’ property rights fulfills the requirements of the limitation clause.

 

Conclusion

 

109. The enactment of Basic Law: Human Dignity and Liberty brought about a constitutional revolution in the status of human rights in Israel. A number of rights were transformed into constitutional supra-legislative rights. The Israeli politic became, with regard to human rights, a constitutional politic. Israeli law was constitutionalized. Constitutional human rights affect all branches of the law (public and private) and influence their nature and substance. If in the past human rights were derived from the various branches of the law, from now on the various branches of law will be derived from human rights. Moreover, there has been a change in the constitutional discourse. If in the past the legal discourse focused on the question of jurisdiction, power and discretion (legislative, administrative and judicial), from now on the discourse will be one of rights and liberties. No longer will it be the administrative power that determines human rights, but rather human rights, in their correct balance, will determine the power of the administration. This constitutional change was effected by the Knesset, which imposed limitations upon itself as well as upon the other governmental authorities. All of these impose a heavy responsibility upon the governmental bodies, which are obligated to protect human rights. We are now in a difficult transitional period in which we must adapt to a new constitutional framework. There is much uncertainty and doubt. There are dangers, some of which have been pointed out by my colleague President Shamgar. Certainly, the judicial authority must exercise great restraint. It must properly understand its role in a democratic state. This role does not involve determining the social policy of the State. The judicial authority does not determine the national priorities. The judge’s role is to oversee the constitutionality of the policies set by the political bodies. The judge’s role is to zealously protect the delicate balance between majority rule and basic human rights and values. The judge’s role is to defend the constitution and safeguard human rights. It is true that a constitutional determination has political ramifications. Nonetheless, it is not made of political considerations. The judge’s considerations are legal-constitutional in nature. I am convinced that in time we will formulate for ourselves judicial criteria for exercising of our constitutional discretion. Uncertainty will diminish. Doubts will lessen. In consolidating our judicial experience we will act with objectivity, with humility and with the requisite judicial courage. We are not the first to face tests of this sort. Just as other countries have succeeded, it can be assumed that we too will face challenges and that in the end, Israeli democracy will emerge strengthened. Indeed, there is now the possibility that the constitutional change will be internalized; that human rights will become the ‘daily bread’ of every girl and boy; that the awareness of rights – rights of children, the disabled, the elderly, the ill, employees, minorities and women – will increase; and that we will become more sensitive to the rights of human beings as such. The prospect is that rule will be based on law, and not law on rule. The prospect is of increased awareness in the Knesset of its constitutional role, and reinforced recognition by the nation of its central status in framing Israel’s constitution. The prospect is of recognition of the Court’s role as guardian of the constitution, balancing the constitutional values established in the constitution and supervising the constitutionality of administrative activity. The prospect is of the ascent of the glory of human rights, and enhanced goodwill and fellowship among human beings, each born in the image of the Creator.