Constitutional Law

HCJ 5658/23

HCJ 5659/23

HCJ 5660/23

HCJ 5661/23

HCJ/5662/23

HCJ 5663/23

HCJ 5711/23

HCJ 5769/23

 

Petitioner in HCJ 5658/23:               Movement for Quality Government in Israel

Petitioners in HCJ 5659/23:             Tal Oron et al.

Petitioner in HCJ 5660/23:               The Smoke Free Israel Initiative

Petitioners in HCJ 5661/23:             The Civil Democracy Movement et al.

Petitioners in HCJ/5662/23:             Yehuda Ressler et al.

Petitioners in HCJ 5663/23:             Israel Bar Association et al.

Petitioner in HCJ 5711/23:               Ometz Movement – Movement for Good Governance, Social and Legal Justice

Petitioner in HCJ 5769/23:               Roni Numa

 

v.

 

Respondents in HCJ 5658/23:          1. The Knesset

                                                            2. Knesset Constitution, Law, and Justice Committee

                                                            3. Government of Israel

                                                            4. Attorney General

 

Respondents in HCJ 5659/23:          1.  Knesset Constitution, Law, and Justice Committee

2. Chair of the Knesset Constitution, Law, and Justice Committee

3.  Knesset

4.  Attorney General

5.  Government of Israel

 

Respondents in HCJ 5660/23:          1. Knesset

                                                            2. Government of Israel

 

Respondents in HCJ 5660/23:          1. Knesset

                                                            2. Government of Israel

 

Respondents in HCJ 5661/23:          1. Knesset

                                                            2. Knesset Constitution, Law, and Justice Committee

                                                            3. Government of Israel

                                                            4. Attorney General

 

Respondents in HCJ 5662/23:          1. Knesset

                                                            2. Minister of Justice

 

Respondents in HCJ 5663/23:          1. Knesset

                                                            2. Government of the State of Israel

                                                            3. Knesset Constitution, Law, and Justice Committee

 

Respondents in HCJ 5711/23:          1. Knesset

                                                            2. Government of Israel

 

Respondents in HCJ 5769/23:          1. Prime Minister of Israel

                                                            2. Knesset Constitution, Law, and Justice Committee

                                                            3. Knesset Foreign Affairs and Defense Committee

                                                            4. Knesset

 

Amici Curiae:                                    1.  Association for Civil Rights in Israel

2. Adam Teva V’Din – Israeli Association for Environmental Protection

 

                                               

The Supreme Court sitting as High Court of Justice

Before: President (emer.) E. Hayut, Deputy President U. Vogelman, Justice I. Amit, Justice N. Sohlberg, Justice D. Barak-Erez, Justice (emer.) A. Baron, Justice D. Mintz, Justice Y. Elron, Justice Y. Wilner, Justice O. Groskopf, Justice A. Stein, Justice G. Canfy-Steinitz, Justice G. Kabub, Justice Y. Kasher, Justice R. Ronen

 

Israeli Supreme Court cases cited:

[1]        HCJ 21/51 Binenbaum v. Tel Aviv Municipality, IsrSC 6, 375 (1952)

[2]        HCJ 129/57 Manshi v. Minister of Interior, IsrSC 12, 209 (1958)

[3]        CA 311/57 Attorney General v. M. Dizengoff & Co., Ltd., IsrSC 13, 1026 (1959)

[4]        HCJ 332/62 Schpanier v. Minister of the Finance, IsrSC 17, 574 (1963)

[5]        CA 492/73 Speiser v. Sports Betting Board, IsrSC 29(1) 22 (1974)

[6]        HCJ 156/75 Dakka v. Minister of Transportation, IsrSC 30(2) 94 (1976)

[7]        HCJ 389/80 Dapei Zahav v. Broadcasting Authority, IsrSC 35(1) 421 (1980)

[8]        HCJ 73/53 Kol Ha’am Co., Ltd. v. Minister of the Interior, IsrSC 7, 871 (1953)

[9]        HCJ 5853/07 Emunah – National Religious Women’s Organization v. Prime Minister, IsrSc 62 (3) 445 (2007)

[10]      HCJ 3823/22 Netanyahu v. Attorney General, (July 17, 2023)

[11]      HCJ 935/89 Ganor v. Attorney General, IsrSC 44(2) 485 (1990)

[12]      HCJ 2624/97 Yedid Ronal, Adv. v. Government of Israel, IsrSC 51(3) 71 (1997)

[13]      HCJ 1993/03 Movement for Quality Government in Israel v. Prime Minister Ariel Sharon, IsrSC 57(6) 817

[14]      HCJ 3997/14 Movement for Quality Government in Israel v. Minister of Foreign Affairs, (Feb. 12, 2015)

[15]      HCJFH 3660/17 General Association of Merchants and Self-Employed Persons v. Minister of the Interior, (Oct. 26, 2017)

[16]      HCJ 4999/03 Movement for Quality in Government in Israel v. Prime Minister, (May 10, 2006)

[17]      HCJ 3017/12 Terror Victims Association v. Prime Minister, Feb. 4, 2013)

[18]      HCJ 3975/95 Kaniel v. Government of Israel, IsrSC 53(5) 459 (1999)

[19]      6407/06 Doron, Tikotzky, Amir, Mizrahi, Advocates v. Minister of  Finance, (Sept. 23, 2007)

[20]      HCJ 8948/22 Sheinfeld v. Knesset, (Jan. 18, 2023)

[21]      CA 4276/94 Tel Aviv Stock Exchange, Ltd. v. Israeli Association of Publicly Traded Companies, IsrSC 50(5) 728 (1997)

[22]      HCJ 3017/05 Hazera (1939), Ltd. v. National Planning and Building Council, (March 23, 2011)

[23]      HCJ 6271/11 Delek – The Israel Fuel Corporation, Ltd. v. Minister of Finance, (Nov. 26, 2012)

[24]      HCJ 4769/90 Zidan v. Minister of Labor, IsrSC 47(2) 147 (1993)

[25]      HCJ 471/11 Chen Hamakom v. Ministry of Environmental Protection, (April 23, 2012)

[26]      HCJ 8396/06 Wasser v. Minister of Defense, IsrSC 62(2) 1908 (2007)

[27]      HCJ 244/00 New Dialogue Society for Democratic Dialogue v. Minister of National Infrastructures, IsrSC 56(6) 25 (2002)

[28]      HCJ 5782/21 Leah Zilber v. Minister of Finance, (Jan. 12, 2022)

[29]      HCJ 6163/92 Yoel Eisenberg v. Minister of Building and Housing, IsrSC 47(2) 229 (1993)

[30]      HCJ 3894/93 Movement for Quality in Government v. State of Israel, IsrSC 47(5) 404 (1993)

[31]      HCJ 4267/93 Amitai, Citizens for Good Administration and Integrity v. Prime Minister IsrSC 47(5) 441 (1993)

[32]      HCJ 932/99 Movement for Quality Government in Israel v. Chairman of the Committee for the Examination of Appointments, IsrSC 53(3) 769 (1999)

[33]      HCJ 4668/01 MK Yossi Sarid v. Prime Minister Ariel Sharon, IsrSC 56(2) 265 (2001)

[34]      HCJ 5403/22 Lavi – Civil Rights, Proper Administration and Encouragement of Settlements v. Prime Minister, (Sept. 22, 2022)

[35]      AAA 812/13 Bautista v. Minister of the Interior, (Jan. 21, 2014)

[36]      AAA 662/11 Yehudit Sela v. Head of the Kfar Vradim Local Council, Sivan Yehieli, (Sept. 9, 2014)

[37]      AAA 5634/09 Jalal v. Jerusalem Municipality, (Aug. 25, 2009)

[38]      HCJ 7150/16 Israel Reform Action Center – The Progressive Movement in Israel v. Minister of Justice, (Sept. 21, 2020)

[39]      HCJ 5555/18 Akram Hasson v. Knesset, (July 8, 2021)

[40]      HCJ 5969/20 Stav Shafir v. Knesset, (May 23, 2021)

[41]      HCJ 10042/16 Quintinsky v. Knesset, (Aug. 6, 2017)

[42]      CA 6821/93 United Mizrahi Bank v. Migdal Cooperative Village, IsrSC 49(4) 221 (1995)

[43]      HCJ 5119/23 Anti-Corruption Movement v. Knesset, (Oct. 26, 2023)

[44]      HCJ 98/69 Bergman v. Minister of Finance, IsrSC 23(1) 693 (1969)

[45]      HCJ 246/81 Agudat Derekh Eretz v. Broadcasting Authority, IsrSC 35(4) 1 (1981)

[46]      HCJ 141/82 M.K. Rubinstein v. Chairman of the Knesset, IsrSC 37(3) 141 (1983)

[47]      HCJ 4908/10 M.K. Ronnie Bar-On v. Knesset, IsrSC 64(3) 275 (2011)

[48]      HCJ 8260/16 Academic Center for Law and Business v. Knesset, Sept. 6, 2017)

[49]      HCJ 2905/20 Movement for Quality Government in Israel v. Knesset, (July 12, 2021)

[50]      CA 733/95 733/95 Arpal Aluminum, Ltd. v. Klil Industries, Ltd., IsrSC 51(3) 577 (1997)

[51]      HCJ 6427/02 Movement for Quality Government in Israel v. Knesset, IsrSC 61(1) 619 (2006)

[52]      HCJ 5744/16 Shachar Ben Meir, Adv. v. Knesset, (May 27, 2018)

[53]      EA 1/88 Neiman v. Chairman of the Central Elections Committee for the 12^th Knesset, IsrSC 42(4) 177 (1988)

[54]      11280/02 Central Elections Committee for the 16^th Knesset v. M.K. Ahmed Tibi, IsrSC 57(4) 1 (2003)

[55]      HCJ 466/07 M.K. Zahava Gal-On v. Attorney General, IsrSC 65(2) 1 (2012)

[56]      HCJ 971/99 Movement for Quality Government in Israel v. Knesset House Committee, IsrSC 56(6) 117 (2002)

[57]      HCJ 1384/98 Avni v. Prime Minister, IsrSC 52(5) 206 (1998)

[58]      HCJ 1368/94 Shay Porat v. State of Israel, IsrSC 57(5) 913 (1994)

[59]      HCJ 428/86 Y. Barzilai, Adv. v. Government of Israel, IsrSC 40(3) 505 (1986)

[60]      HCJ 2311/11 Sabah v. Knesset, (Sept. 17, 2014)

[61]      HCJ 3803/11 Association of Capital Market Trustees v. State of Israel, (Feb. 5, 2012)

[62]      HCJ 3429/11 Alumni Association of the Arab Orthodox School in Haifa v. Minister of Finance, (Jan. 5, 2012)

[63]      HCJ 1308/17 Silwad Municipality v. Knesset, (June 9, 2020)

[64]      HCJ 3166/14 Gutman v. Attorney General, (March 12, 2015)

[65]      HCJ 1661/05 Gaza Coast Regional Council v. Knesset, IsrSC 59(2) 481 (2005)

[66]      HCJ 5026/04 Design 22 Shark Deluxe Furniture, Ltd. v. Tzvika Rosenzweig, Director of Sabbath Work Permits Department, Ministry of Labour and Social Affairs, IsrSC 60(1) 38 (2005)

[67]      EDA 1806/19 In re: Central Elections Committee for the 21st Knesset: Lieberman et al. v. Cassif et al., (July 18, 2019)

[68]      HCJ 1210/23 Arad v. Minister of Justice, (Feb. 14, 2023)

[69]      HCJ 1210/23 Oron v. Knesset Constitution, Law and Justice Committee, (Feb. 16, 2023)

[70]      HCJ 2144/20 Movement for Quality Government in Israel v. Speaker of the Knesset, (March, 23, 2020)

[72]      HCJ 6654/22 Kohelet Forum v. Prime Minister, (Dec. 13, 2022)

[73]      HCJ 4076/20 Shapira v. Knesset, (July 22, 2020)

[74]      HCJ 294/89 National Insurance Institute v. Appeals Committee under Section 11 of the Victims of Hostile Actions (Pensions) Law, 5730-1970, IsrSC 45(5) 445 (1991)

[75]      HCJ 4562/92 Zandberg v. Broadcasting Authority, IsrSC 50(2) 793 (1996)

[76]      HCJ 9098/01 Ganis v. Ministry of Building and Housing, IsrSC 59(4) 241 (2004)

[77]      HCJ 781/15 Arad Pinkas v. Committee for Approval of Embryo Carrying Agreements under the Embryo Carrying Agreements (Agreement Approval & Status of the Newborn Child) Law, 5756-1996, (Feb. 27, 2020)

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

[79]      CA 8569/06 Director of Land Taxation, Haifa Office v. Polity, IsrSC 62(4) 289 (2008)

[80]      CFH 5783/14 Tzemach v. El Al Israel Airlines, Ltd., (Sept. 12, 2017)

[81]      HCJ 212/03 Herut – The National Jewish Movement v. Justice Mishael Cheshin, Chairman of the Central Elections Committee for the Sixteenth Knesset, IsrSC 57(1) 750 (2003)

[82]      HCJ 403/71 Alkourdi v. National Labour Court, IsrSC 66 (1972)

[83]      HCJ 1260/19 Kramer v. Ombudsman of Public Complaints against State Representatives in the Courts, (May 14, 2020)

[84]      HCJ 243/62 Israel Film Studios, Ltd. v. Levi Geri, Chairman of the Film and Theater Review Board, 16 IsrSC 2407 (1962)

[85]      HCJ 910/86 Major (Res.) Yehuda Ressler, Adv. v. Minister of Defense, IsrSC 42(2) 441 (1988)

[86]      HCJ 581/87 Zucker v. Minister of the Interior, IsrSC 42(4) 529 (1989)

[87]      HCJ 320/96 Garman v. Herzliya City Council, 52(2) 222 (1998)

[88]      HCJ 5331/13 Tayib v. Attorney General, (Fb. 25, 2014)

[89]      CA 108/59 Pritzker v. “Niv” Agricultural Association, Ltd. (in liquidation), IsrSC 14 1545 (1960)

[90]      HCJFH 5026/16 Gini v. Chief Rabbinate of Israel, (Sept. 12, 2017)

[91]      HCJ 3267/97 Amnon Rubinstein v. Minister of Defense, IsrSC 52(5) 481

[92]      HCJ 5113/12 Friedman v. Knesset, (Aug. 7, 2012)

[93]      HCJ 7146/12 Adam v. Knesset, IsrSC 61(1) 717 (2013)

[94]      HCJ 7385/13 Eitan - Israeli Immigration Policy Center v. Government, (Sept. 22, 2014)

[95]      HCJ 5469/20 National Responsibility - Israel My Home v. Government of Israel, (Apr. 4, 2021)

[96]      HCJ 76/63 Trudler v. Election Officers for the Agricultural Committees, IsrSC 17, 2503 (1963)

[97]      HCJ 68/07 Robinson v. State of Israel, (Aug. 9, 2007)

[98]      HCJ 2533/97 Movement for Quality Government in Israel v. Government of Israel, IsrSC 51(3) 46 (1997)

[99]      HCJ 1163/98 Sadot v. Prisons Service, IsrSC 58(4) 817 (2001)

[100]    HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister of Israel, IsrSC 61(1) 1 (2006)

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

[102]    HCJ 306/81 Shmuel Flatto Sharon v. Knesset House Committee, IsrSC 35(4) 118 (1981)

[103]    LCrimA 2060/97 Valinchik v. Tel Aviv District Psychiatrist, IsrSC 52(1) 697

[104]    HCJFH 219/09 Minister of Justice v. Zohar, IsrSC 64(2) 421 (2010)

[105]    HCJ 6069/00 Association for Perpetuating the Memory of the Victims of the Helicopter Disaster in She’ar Yishuv v. Minister of Defense, IsrSC 55(4) 75 (2001)

[106]    HCJ 3840/13 Anonymous v. Minister of the Interior, (Nov. 30, 2015)

[107]    HCJ 176/90 Machnes v. Minister of Labor and Welfare, IsrSC 47(5) 711 (1993)

[108]    HCJ 1829/93 Nazareth Transportation and Tourism Co. v. Minister of Finance, IsrSC 48 (4) 42 (1994)

[109]    HCJ 5946/03 Keshet Prima Animal Feed Supplements v. Supervisor of Prices – Ministry of Industry and Welfare, (Feb. 25, 2007)

[110]    HCJ 8076/21 Selection Committee for the 1981 Israel Prize Computer Science Research v. Minister of Education, (March 29, 2022)

[111]    HCJ 8134/11 Moshe Asher, Adv. and Acct. v. Minister of Finance, Dr. Yuval Steinitz, (Jan. 29, 2012)

[112]    HCJ 5290/97 Ezra – National Hareidi Youth Movement v. Minister of Religious Affairs, 51(5) 410 (1997)

[113]    HCJ 2651/09 Association for Civil Rights in Israel v. Minister of the Interior, (June 15, 2011)

[114]    HCJ 794/17 Ziada v. Commander of the IDF Forces in the West Bank, (Oct. 31, 2017)

[115]    HCJ 11437/05 Kav LaOved v. Minister of the Interior, IsrSC 64(3) 122 (2011)

[116]    HCJ 4988/19 Rosenzweig Moissa v. Public Utilities Electricity Authority, (Jan. 20, 2022)

[117]    HCJ 4500/07 Yachimovich v. Council of the Second Authority for Radio and Television, (Nov. 21, 2007)

[118]    HCJ 8756/07 “Mavoi Satum” Association v. Committee for the Appointment of Rabbinical Court Judges, (June 3, 2008)

[119]    AAA 343/09 Jerusalem Open House for Gay Pride v. Jerusalem Municipality, IsrSC 64(2) 1 (2010)

[120]    HCJ 986/05 Peled v. Tel-Aviv Yafo Municipality, (April 13, 2005)

[121]    AAA 1930/22 Jerusalem Open House for Gay Pride v. Jerusalem Municipality, (Oct. 11, 2023)

[122]    LCrimA 1611/16 State of Israel v. Vardi, (Oct. 31, 2018)

[123]    HCJ 376/81 Lugasi v. Minister of Communications, IsrSC 36(2) 449 (1981)

[124]    HCJ 287/69 Meiron v. Minister of Labor, IsrSC 24(1) 337 (1970)

[125]    HCJ 5657/09 Movement for Quality Government v. Prime Minister, (Nov. 24, 2009)

[126]    HCJ 1843/93 Pinhasi v. Knesset, IsrSC 49(1) 661 (1995)

[127]    AAA 867/11Tel-Aviv Yaffo Municipality v. A.B.C. Management and Maintenance, Ltd., (Dec. 28, 2014)

[128]    HCJ 8160/96 Abu Krinat v. Minister of the Interior, IsrSC 52(2) 132 (1998)

[129]    HCJ 7542/05 Portman v. Shitreet, (Feb. 11, 2007)

[130]    HCJ 1284/99 A v. Chief of General Staff, IsrSC 53(2) 62 (1999)

[131]    HCJ 3132/15 Yesh Atid Party led by Yair Lapid v. Prime Minister of Israel, Aug. 23, 2015)

[132]    HCJ 268/13 Chai v. Exceptions Committee for Appointments to Senior Positions in the Prime Minister’s Office, (March 20, 2013)

[133]    HCJ 1004/15 Movement for Governability and Democracy v. Minister of the Interior, (April 1, 2015)

[134]    HCJ 3884/16 A. v. Minister of Internal Security, (Nov. 20, 2017)

[135]    HCJ 8815/05 Landstein v. Spiegler, (Dec. 26, 2005)

[136]    HCJ 5167/00 Professor Hillel Weiss, Adv. v. Prime Minister of Israel, IsrSC 55(2) 455 (2001)

[137]    HCJ 7510/19 Yossi Or-Cohen, Adv. v. Prime Minister, (Jan. 9, 2020)

[138]    HCJ 9202/08 M.K. Limor Livnat v. Prime Minister, (Dec. 4, 2008)

[139]    HCJ 9577/02 Mafdal – The Mizrahi National Religious Party v. Speaker of the Knesset, IsrSC 57(1) 710 (2002)

[140]    HCJ 4065/09 Yosef Pinhas Cohen, Adv. v. Minister of the Interior, (July 20, 2010)

[141]    142/89 Laor Movement v. Speaker of the Knesset, IsrSC 44(3) 529 (1990)

[142]    HCJ 2060/91 Cohen v. Shilansky, IsrSC 46(4) 319 (1992)

[143]    HCJ 4128/02 Adam Teva V’Din – Israeli Association for Environmental Protection v. Prime Minister, IsrSC 58(3) 503 (2004)

[144]    HCJ 9409/05 Adam Teva V’Din – Israeli Association for Environmental Protection v. National Planning and Building Committee for National Infrastructure, IsrSC 64(2) 316 (2010)

[145]    HCJ 1756/10 Holon Municipality v. Minister of the Interior, Jan. 2, 2013)

[146]    HCJ 3758/17 Histadrut v. Courts Administration, (July 20, 2017)

[147]    HCJ 4838/17 Unipharm, Ltd. v. Director General of the Natural Gas Authority, (Jan. 4, 2018)

[148]    HCJ 4374/15 Movement for Quality Government in Israel v. Prime Minister, (March 27, 2016)

[149]    HCJ 6637/16 Levenstein Levi v. State of Israel, (April 18, 2017)

[150]    HCJ 217/80 Ze’ev Segal v. Minister of the Interior, IsrSC 34(4) 429 (1980)

[151]    HCJ 2605/05 Academic Center of Law and Business, Human Rights Division v. Minister of Finance, IsrSC 63(2) 545 (2009)

[152]    HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance, IsrSC 51(4) 367 (1997)

[153]    HCJ 2208/02 Salameh v. Minister of the Interior, IsrSC 56(5) 950 (20020

[154]    HCJ 3234/15 Yesh Atid Party led by Yair Lapid v. Speaker of the Knesset, (July 9, 2105)

[155]    HCJ 706/19 Deputy Speaker of the Knesset Esawi Frej v. Speaker of the Knesset, (March 28, 2019)

[156]    HCJ 4676/94 Mitral, Ltd. v. Knesset of Israel, IsrSC 50(5) 15 (1996)

 

English cases cited:

[157]    Associated Provincial Picture Houses Ltd. v. Wednesbury Corp. [1948] 1 KB 223 (CA)

[158]    Kennedy v The Charity Commission [2014] UKSC 20

[159]    Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 (HL)

[160]    R v Upper Tribunal (Immigration and Asylum Chamber) [2023] EWHC 791

Indian cases cited:

[161]    Minerva Mills v. Union of India, AIR 1980 S.C. 1789 (1980)

[162]    Supreme Court Advocates-on-Record Ass'n v. Union of India, (2016) 4 SCC 1

Australian cases cited:

[163]    Minister for Immigration & Citizenship v Li (2013) 249 CLR 332

Canadian cases cited:

[164]    Canada (Minister of Citizenship and Immigration) v. Vavilov, [2019] 4 S.C.R. 653

 

 

Judgment

(January 1, 2024)

 

President (emer.) E. Hayut:

1.         Since the founding of the state, the courts have been conducting judicial review over all the bodies of the executive branch without exception, in accordance with the administrative causes for review developed in the case law over the years. A dramatic event occurred in Israeli law on July 24, 2023. On that day, in a second and third reading, the Knesset plenum approved Basic Law: The Judiciary (Amendment no. 3) (hereinafter, respectively: the Basic Law and the Amendment), according to which, sec. 15(d1) was added as follows:

Notwithstanding what is stated in this Basic Law, a holder of judicial authority under law, including the Supreme Court sitting as the High Court of Justice, shall not address the reasonableness of a decision by the Government, the Prime Minister or a Government Minister, and will not issue an order in such a matter; in this section, “decision” means any decision, including in matters of appointments, or a decision to refrain from exercising authority.

            In other words, the amendment establishes that the courts – including the Supreme Court sitting as High Court of Justice – no longer hold jurisdiction to conduct judicial review of the reasonableness of decisions made by the Government, the Prime Minister, and the ministers.

2.         Shortly after the adoption of the Amendment, the eight petitions before us were filed. The primary relief requested is that we order that the Amendment is void. This, it is argued, in view of its severe harm to the core characteristics of the State of Israel as a democratic state, due to the abuse of the Knesset’s constituent authority, and due to defects in the legislative process. The Attorney General supports the position of the Petitioners and is also of the opinion that the Amendment should be declared void, while the other Respondents argue that the petitions should be dismissed. Given the importance of the issues raised in these petitions, we held an unprecedented en banc hearing by all fifteen justices of the Supreme Court.

            At the outset, prior to addressing the various issued raised by the petitions, I have decided to provide a brief survey of the development of the reasonableness standard in Israeli law, and to present the course of events that led up to the enactment of the Amendment that is the subject of the petitions.

 

Background

1. The Reasonableness Standard in Israeli law

3.         The reasonableness standard has been one of the grounds for administrative review since the earliest days of Israeli law. The source of this standard is to be found in English administrative law, where it was originally employed primarily for examining the lawfulness of bylaws (Daphne Barak-Erez, Administrative Law, vol. II, 723 (2010) [Hebrew] (hereinafter; Barak-Erez, Administrative Law)). The English case generally referred to as the central one in this regard is Associated Provincial Picture Houses, Ltd. v. Wednesbury Corp. [157] (hereinafter: Wednesbury), which held that when an authority makes a decision that is so unreasonable that no reasonable authority could ever have come to it, the court will intervene. As was explained, this concerns decisions that cannot be seen as falling within the powers granted to the authority. Examples of such decisions were given in the judgment in regard to situations as, for example, a person being dismissed because of the color of her hair or where the authority considers extraneous matters in making its decision. In other words, in its original English version, the reasonableness standard was intended to contend with decisions that were illogical or arbitrary, or that comprised other serious flaws in the exercise of discretion, such as irrelevant considerations (see: Barak-Erez, Administrative Law, 723; Margit Cohn, “Unreasonableness in Administrative Law: Comparative Aspects and Some Normative Comments,” in Theodore Or Book 773, 778-782 (Aharon Barak & Ron Sokol, eds., 2013) [Hebrew] (hereinafter: Cohn, “Comparative Aspects”)).

4.         In the beginning, the reasonableness standard was applied in our legal system in a manner similar to that of traditional English law (I. Zamir, Administrative Power, vol. V, 3550-3551 (2020) [Hebrew] (hereinafter: Zamir, Administrative Power)). Thus, when the Court was asked to void a municipal bylaw for retroactivity, it was held that it should be done in accordance with the criterion that examines whether the retrospective provision “is illogical or unacceptable” to the point that it can be said that the legislature never empowered the authority to make it (HCJ 21/51 Binenbaum v. Tel Aviv Municipality [1] 385-386 (hereinafter: Binenbaum); and also see: HCJ 129/57 Manshi v. Minister of Interior [2] 215). Over the years, it was held that this standard also applies to the decisions of government ministers and to the Government as a whole (CA 311/57 Attorney General v. Dizengoff [3] 1031 (hereinafter: Dizengoff); HCJ 332/62 Schpanier v. Minister of the Finance [4]; CA 492/73 Speiser v. Sports Betting Board [5] 26).

5.         At that stage, the reasonableness standard was viewed as a cause that was strongly tied to that of deviation from authority, much as it had been in its English sources. Thus, in Dizengoff, it was noted that it is difficult to distinguish substantially between the test of reasonableness and other tests for examining an administrative act, such as lack of good faith, improper considerations, extraneous objectives. It was further noted that, in practice, all of these tests are nothing more than specific instances of abuse of power (ibid., 1038).

6.         The foundation for establishing reasonableness as an independent ground for review distinct from the other causes for review of administrative discretion was first laid in HCJ 156/75 Dakka v. Minister of Transportation [6]) (hereinafter: Dakka)). In that case, Justice M. Shamgar was willing, in principle, to recognize the unreasonableness of an administrative decision, even where it was not tainted by other administrative flaws, in cases in which a proper balance was not stuck among the necessary considerations in the matter, stating:

[…] unreasonableness can also appear alone: for example, there may be circumstances in which the ministerial authority did not weigh any consideration extraneous to the matter, and where only materially relevant considerations were assessed, but the relevant considerations were granted relative weight in such distorted proportions that the final conclusion was so entirely baseless as to be absolutely unreasonable (ibid., 105).

7.         This broader approach was adopted by this Court in HCJ 389/80 Dapei Zahav v. Broadcasting Authority [7] (hereinafter: Dapei Zahav)). In that case, Justice A. Barak set out four guiding principles in relation to the reasonableness standard, which in his opinion, reflected both the lege lata and the lege ferenda. First, he explained that the reasonableness standard “[…] stands on its own, and it can serve to invalidate unreasonable administrative discretion even if it is not the result of an arbitrary decision, and even if the decision was made in good faith while considering all of the relevant factors and only those factors” (ibid., 439). Second, relying, inter alia, upon Dakka, Justice Barak held that an administrative decision can be deemed unreasonable it did not grant appropriate weight to various interest that the authority had to consider in making the decision (ibid., 445-446). In that regard, Justice Barak pointed to several early judgments in which, although they did not use the word “reasonableness”, the Court intervened in an administrative decision when it found that the balance struck by the administrative authority among the various considerations was unreasonable (e.g., HCJ 73/53 Kol Ha’am v. Minister of the Interior [8] 892 (hereinafter: Kol Ha’am)). Third, he explained that unreasonableness had to be examined in accordance with objective criteria (“the reasonable public servant”), and that the reasonableness principle establishes a range of reasonable possibilities within which the Court will not intervene in a decision of an administrative authority and will not substitute its discretion for that of the authority (Dapei Zahav, 439-443). Fourth, it was noted that for the purpose of judicial intervention in an administrative decision, it is necessary to find material or extreme unreasonableness that goes to the very root of the matter (ibid., 444).

            Justice M. Ben-Porat concurred in the opinion of Justice Barak according to which reasonableness could serve as the sole justification for judicial intervention. President M. Landau was of the opinion that there was no need to broaden the reasonableness standard such that the balance among the various considerations in the administrative decision would also be examined. However, President Landau explained that, in practice, the difference between his position and that of Justice Barak was not significant, and that it was largely “a matter of terminology” (ibid., 432).

8.         Since Dapei Zahav, and for over four decades, it has been settled law that reasonableness is a distinct, independent ground, along with the other distinct grounds for examining administrative discretion (such as extraneous considerations, proportionality and discrimination), and that it “no longer signifies only arbitrariness or an absolute lack of sense in the decision” but rather “examines the internal balance struck by the authority among the considerations” (Barak-Erez, Administrative Law, 724-725). In this framework, the court examines whether the administrative authority weighed all of the materially relevant considerations, and whether it assigned the appropriate relative weight to each of the relevant considerations (see, among many: HCJ 5853/07 Emunah v. Prime Minister [9] 486-487 (hereinafter: Emunah); HCJ 3823/22 Netanyahu v. Attorney General [10] para. 4, per Justice Barak-Erez (hereinafter: Netanyahu); HCJ 935/89 Ganor v. Attorney General [11] 514-516 (hereinafter: Ganor)).

            This is the reasonableness rule that applied – until the Amendment that is the subject of these petitions – to all administrative authorities, including the Government and its ministers (see: HCJ 2624/97 Ronal v. Government [12] 77; HCJ 1993/03 Movement for Quality Government v. Prime Minister [13] 840 (hereinafter: Hanegbi 2003)).

9.         Over the years, there has been criticism of this form of reasonableness in both the case law and the literature. The main argument made in this regard is that the standard, in its format since Dapei Zahav, creates uncertainty as to the method of its application and that, in practice, it leads to the court substituting its discretion for that of the authority (see, in this regard, the opinion of Justice A. Grunis in Emunah, 521-514 and HCJ 3997/14 Movement for Quality Government v. Minister of Foreign Affairs [14] para. 29 of his opinion (hereinafter: Hanegbi 2014); and see the opinion of Justice N. Sohlberg in HCJFH 3660/17 General Association of Merchants v. Minister of the Interior [15] paras. 35-36 (hereinafter: Merchants Association) and his article “On Subjective Values and Objective Judges,” 18 Hashiloach 37 (2020) [Hebrew] (hereinafter: Sohlberg, “On Objective Values”) and “The Deri-Pinhasi Rule from the Reasonableness Perspective,” The Israel Law & Liberty Forum Blog (Jan. 16, 2022) [Hebrew]; and see: Yoav Dotan, “Two Concepts of Deference and Reasonableness,” 51 Mishpatim 673, 701-703 (2022) [Hebrew]).

            Nevertheless, even the standard’s critics did not recommend that it be abolished entirely and were of the opinion that the solution to the problems it presents lies in narrowing its scope. Thus, it was suggested, inter alia, that recourse to reasonableness be made only in extreme cases and as a last resort (see the opinion of Justice Grunis in Emunah, 524). Another suggestion was that the scope of incidence of “substantive” reasonableness be narrowed, and that it should be applied only to the decisions of the professional echelon, as opposed to decisions of the of the elected echelon that generally reflect a value-based worldview (Sohlberg, “On Objective Values”).

10.       In any case, over the long years in which the reasonableness standard was developed in the case law, this Court created “a comprehensive corpus of rules and criteria for its application that significantly limited the uncertainty of the rule in its initial abstract form” (Hanegbi 2014, para. 4 of my opinion). Thus, insofar as the identity of the decision maker, it was held that the more senior the authority, the greater the margin of discretion it is granted (HCJ 4999/03 Movement for Quality in Government v. Prime Minister [16] para. 18 of my opinion (hereinafter: HCJ 4999/03)). In particular, it was held that the Court must show greater restraint in all that concerns intervention in a Government decision, in view of “the status of the government as the head of the executive branch that is entrusted with establishing and implementing policy” (HCJ 3017/12 Terror Victims Association v. Prime Minister [17] para. 10).

            In regard to the characteristics of administrative authority, it was held that judicial intervention should be limited in regard to decisions that reflect broad policy (see, e.g., HCJ 3975/95 Kaniel v. Government [18] 497; HCJ 6407/06 Doron v. Minister of Finance [19] para. 66, per Justice E. Arbel); in regard to an exercise of authority that involves weighing political considerations (see, e.g., HCJ 8948/22 Scheinfeld v. Knesset [20], para. 52 of my opinion (hereinafter: Scheinfeld)); where the decisions reflect the expertise and professionalism of the authorized bodies (see, e.g., CA 4276/94 Tel Aviv Stock Exchange, Ltd. v. Israeli Association of Publicly Traded Companies [21] 739; HCJ 3017/05 Hazera (1939), Ltd. v. National Planning and Building Council [22] para. 38, per Justice A. Procaccia; HCJ 6271/11 Delek v. Minister of Finance [23] para. 11)). In addition, it has long been held that the Court must act with particular caution in examining the reasonableness of regulations, particularly in the case of regulations approved by one of the Knesset’s committees (see, e.g., HCJ 4769/90 Zidan v. Minister of Labor [24] 172; HCJ 471/11 Chen Hamakom v. Ministry of Environmental Protection [25] para 31).

11.       In accordance with these principles, the reasonableness standard has been employed by the Court in intervening in administrative decisions in which the balance struck among the various considerations reflected extreme unreasonableness. This, inter alia, in regard to certain policy decisions (see: HCJ 8396/06 Wasser v. Minister of Defense [26] (hereinafter: Wasser); HCJ 244/00 New Dialogue v. Minister of National Infrastructures [27]; HCJ 5782/21 Zilber v. Minister of Finance [28] (hereinafter: Zilber]); in regard to appointments in the public service (see: HCJ 6163/92 Eisenberg v. Minister of Building and Housing [29] (hereinafter: Eisenberg); HCJ 3894/93 Movement for Quality in Government v. State of Israel [30] (hereinafter: Deri); HCJ 4267/93 Amitai, Citizens for Good Administration and Integrity v. Prime Minister [31] (hereinafter: Pinhasi); HCJ 932/99 Movement for Quality Government v. Chairman of the Committee for the Examination of Appointments [32]; HCJ 4668/01 Sarid v. Prime Minister [33] (hereinafter: Sarid); Scheinfeld); in regard to decisions by an interim government (see, e.g.: HCJ 5403/22 Lavi v. Prime Minister [34] (hereinafter: Lavi)); in regard to specific decisions that infringed individual rights and interests (see, e.g.: AAA 812/13 Bautista v. Minister of the Interior [35] (hereinafter: Bautista); AAA 662/11 Sela v. Yehieli [36] (hereinafter: Sela); AAA 5634/09 Jalal v. Jerusalem Municipality [37]) and in regard to decisions concerning filing criminal or disciplinary charges (see, e.g.: Ganor; HCJ 7150/16 IRAC v. Minister of Justice [38]).

B. The Legislative Process of the Amendment

12.       On January 1, 2023, six days after the swearing in of the 37^th Government, Minister of Justice Yariv Levin gave a speech in which he presented what he referred to as “the first stage of the reform of governance”. That plan comprised a number of elements: changing the composition of the Judicial Selection Committee, limiting judicial review of Knesset legislation, changing certain aspects of the work of the government legal advisors, and abolishing the reasonableness standard.

            About a week thereafter, the Minister of Justice sent the Attorney General a draft memorandum regarding  Basic Law: The Judiciary (Amendment – Reform in the Law) (hereinafter: the Draft Memorandum), which comprised recommendations for legislative changes in regard to the subjects he presented in his speech, among them the recommendation that the Court not void decisions by “the Government, its ministers, an agency under their responsibility, or anyone acting on their behalf” on the basis of their degree of reasonableness. In an opinion presented by the Attorney General’s on February 2, 2023, she explained that each of the recommended arrangements in the Draft Memorandum “raises material problems that strike at the heart of the principle of the separation of powers, the independence of the judiciary, protection of individual rights, the rule of law, and the ensuring of good governance”. In regard to abolishing the reasonableness standard, the Attorney General noted that this change might lead to significant harm to a citizen’s ability to “present the actions of an authority for independent, objective review and obtain relief from the court”.

13.       In the end, the Draft Memorandum did not advance, and no government bills were submitted on the subjects it comprised. However, in parallel to the Draft Memorandum, on January 11, 2023, the Knesset Constitution, Law, and Justice Committee (hereinafter: the Committee or the Constitution Committee) began a series of meetings to discuss the various recommendations for changes in the field of law under the rubric “Zion shall be redeemed with judgment – Restoring justice to the legal system” (hereinafter: the plan for changes in the legal system). In the session, the Chair of the Committee, Member of Knesset Simcha Rothman, (hereinafter: MK Rothman) noted that the amendments that would be addressed by the Committee would include government bills, private member’s bills, and bills by the Committee under sec. 80(a) of the Knesset Rules of Procedure, which states:

The House Committee, the Constitution, Law and Justice Committee, and the State Control Committee are entitled to initiate bills in the spheres of their competence as elaborated in these Rules of Procedure, on the following topics, and prepare them for the first reading: Basic Laws, matters that are required due to an amendment of a Basic Law, and are proposed side by side with it, the Knesset, Members of the Knesset, the elections to the Knesset, political parties, party financing, and the State Comptroller.

            MK Rothman explained that the first subject that would be brought up for debate concerned the government legal advice system, and that the Committee would be advancing a Basic Law bill in this regard.

14.       On January 16, 2023, the members of the Committee were presented with a Preparatory Document by the Committee’s legal advisors that explained that the legislative path of submitting a bill by the Committee was a relatively rare procedure and “in the overwhelming majority of cases, it was reserved by the Constitution Committee for subjects that were not controversial or to subjects with a strong connection to the Knesset and its activities” (also see: the statement of the Knesset Legal Advisor, Advocate Sagit Afik (hereinafter: Advocate Afik) in the Transcript of meeting no. 7 of the Constitution Committee of the 25^th Knesset, 31 (Jan. 16, 2023) (hereinafter: Transcript of Meeting 7)). In her opinion of January 25, 2023, Advocate Afik explained that most of the elements in the plan for changing the legal system could advance as a Basic Law bill on behalf of the Committee, but that the Committee had to hold “a significant debate on all the issues and their ramifications”. However, in the matter of the legislation concerning the government legal advisors, Advocate Afik decided that the matter was one that should be arranged in regular legislation rather than in a Basic Law, and that it should not proceed as the Committee’s bill in view of the fact that it was a matter that clearly concerned the conduct of the Government. After that, the Committee ended its discussion of the bill in regard to the government legal advisors.

15.       In the meantime, on January 17, 2023, MK Rothman submitted the Basic Law: The Judiciary (Amendment – Strengthening the Separation of Powers) Bill (hereinafter: Basic Law Bill – Strengthening the Separation of Powers). The bill comprised provisions in regard to changing the composition of the Judicial Selection Committee and for restricting judicial review over Basic Laws and statutes. Section 2 of the bill concerned the reasonableness standard. It recommended adding the following provision to the Basic Law:

Notwithstanding what is stated in this Basic Law, a holder of judicial authority under law, including the Supreme Court sitting as the High Court of Justice, shall not hear and shall not issue an order against the Government, the Prime Minister, a government minister, or any other elected official as shall be established by law, in regard to the reasonableness of their decision.

16.       In the Committee’s meeting on January 22, 2023, MK Rothman presented the bill and noted that, as opposed to the draft published by the Minister of Justice, his bill in regard to the reasonableness standard focused only upon judicial review of the decisions of elected officials, which creates a “democratic problem” that, according to him, was also noted in Justice Sohlberg’s articles (Transcript of meeting no. 13 of the Constitution Committee of the 25^th Knesset, 7 (Jan. 22, 2023)). Pursuant to that, the Committee held a number of additional meetings, which were followed by a vote on Basic Law Bill – Strengthening the Separation of Powers only in regard to the elements of the bill concerning changing the composition of Judicial Selection Committee and limiting judicial review of Basic Laws and statutes. These elements were approved in a first reading by the Knesset plenum on February 20, 2023, and March 13, 2023. On March 27, 2023, the Constitution Committee also approved the bill for changing the composition of the Judicial Selection Committee in a manner that would ensure the representatives of the Government and the coalition a majority on the committee. However, against the background of broad public protests against the plan to change the legal system, the Prime Minister announced that same day that advancing the bill would be delayed for the purpose of conducting negotiations with the representatives of the opposition.

17.       When a number of months passed without achieving agreements between the coalition and the opposition, the legislative proceedings for changing the legal system were renewed on June, 20, 2023, and at that stage, MK Rothman submitted the amendment that is the subject of the petitions to the Committee under the title “Basic Law: The Judiciary (Amendment – The Reasonableness Standard) Bill” (hereinafter: the Amendment Bill). The new bill was advanced as a Committee bill and its wording was identical to the paragraph regarding reasonableness in Basic Law Bill – Strengthening the Separation of Powers.

18.       On June 23, 2023, in advance of the debate on the Amendment Bill, the Attorney General issued a preparatory document (hereinafter: the Preparatory Document of June 23, 2023). That document noted that the Amendment utterly abolished the reasonableness standard in regard to the elected echelon, including reasonableness in the sense of “irrationality” that existed prior to Dapei Zahav. In this regard, the Preparatory Document surveyed various problematic aspects of the bill, including the fear of creating “black hole” in areas in which judicial review rests primarily upon reasonableness. The document further noted that the appropriateness of the comprehensive distinction between the elected and professional echelons should be examined, bearing in mind that many of the decisions at the elected echelon are specific decision relating to matters of the individual. It was suggested that an alternative model be considered in which reasonableness would be abolished only in regard to certain types of decisions.

19.       Beginning on June 25, 2023, and over the next ten days, the Committee held five debates on the Amendment Bill and its preparation for a first reading. In the course of the debates, MK Rothman rejected suggestions for narrowing the scope of the reasonableness standard instead of abolishing it entirely in regard to the elected echelon, for example, by permitting a limited standard of extreme unreasonableness. MK Rothman explained that “[…] there is a structural problem, and the structural problem is like this: […] there is no way of drawing a line between extreme unreasonableness and non-extreme unreasonableness. There is no way to do it” (Transcript of meeting no. 105 of the Constitution Committee of the 25^th Knesset, 7 (June 25, 2023) (hereinafter: Transcript of meeting 105)). MK Rothman further explained that the Amendment Bill does not nullify the possibility of judicial review on the basis of other causes like deviation from authority, infringement of rights, and extraneous considerations.

            The Committee’s legal advisor, Advocate Gur Blay (hereinafter: Advocate Blay), noted that the Amendment Bill is an exceptional bill that does not ground the principles of administrative law but only abolishes judicial review on the basis of the reasonableness standard in all that relates to the elected echelon. Advocate Blay emphasized that there are cases in which there are no extraneous consideration or infringed rights and where, in practice, the reasonableness standard is the only response to harm to a citizen, without which a “vacuum of judicial oversight” may result (ibid., 115). In this regard, Advocate Blay referred to the many individual decisions that may affect particular individual interests, among them, obtaining a permit, concession or license from the Government. Advocate Blay further noted that even among the critics of the reasonableness standard, the prevailing view is that it should be narrowed rather than abolished, and that this narrowing should be the product of the case law and not legislation, while leaving the courts a degree of flexibility.

            The Deputy Attorney General (Public Administrative Law), Advocate Gil Limon (hereinafter: Advocate Limon), conveyed the Attorney General’s objection to the bill. Advocate Limon noted that the government’s duty to act reasonably is an important guarantee for the realization of the state’s democratic values and that the bill effectively exempts the elected echelon from this duty and thereby seriously harms the basic values of Israeli democracy. Advocate Limon further noted that the bill would lead to “the creation of a normative black hole” and emphasized the inherent problem in “absolutely blocking judicial review of unreasonable decisions based exclusively upon the identity of the decision maker in regard to the most important decisions made at the highest level of governmental” (Transcript of meeting no. 108 of the Constitution Committee of the 25^th Knesset, 10 (June 26, 2023) (hereinafter: Transcript of meeting 108)). Advocate Limon went on to survey the broad consequences of the Amendment Bill, particularly in all that concerned ethical behavior in regard to appointments to public offices, Government actions leading up to elections, and situations in which elected officials intentionally refrain from exercising their authority.

20.       In the course of preparing the Amendment Bill for a first reading, the Committee heard the opinions of experts from academia and other representatives of civil society. Thus, for example, Professor Yoav Dotan emphasized that despite his criticism of the reasonableness standard, the Amendment Bill is very sweeping “in the sense of throwing out the baby with the bathwater” (Transcript of meeting no. 114 of the Constitution Committee of the 25^th Knesset, 42 (July 4, 2023)). Professor Dotan explained that “[…] the distinction between decisions that are of a political character and those that are not such cannot be based exclusively on the level at which the decision is made […] it is necessary first to distinguish between general policy decisions and individual decisions” (ibid.).

21.       To complete the picture, it should be noted that in the course of the meetings, Knesset members from the opposition argued that it was not possible to advance the bill under the procedure for submitting a bill on behalf of a committee and that it did not represent a bill that the committee had “initiated and prepared”, as required under sec. 80 of the Knesset Rules of Procedure. On July 2, 2023, Advocate Afik responded to a request by MK Gilad Kariv of the Labor faction (hereinafter: MK Kariv) on this subject and noted that she did not see any reason for intervening in the legislative process, and that there was no requirement that the Committee hold a preliminary debate on the question of Amendment Bill as a committee bill.

22.       In the end, on July 4, 2023, the Amendment Bill was approved for a first reading as a Basic Law bill on behalf of the Committee by a majority of nine in favor and four opposed. In the explanatory notes presented to the plenum, it was noted, on the basis of a quote from Dapei Zahav, that the reasonableness standard currently makes it possible to annul decisions that do not give “appropriate weight to the various interests that the administrative authority is required to consider in its decision” (Basic Law: The Judiciary (Amendment no. 5) (The Reasonableness Standard) Bill, Knesset Bills 5783 110). Inter alia, it was further argued in regard to the use of the reasonableness standard in that sense, particularly in relation to the elected echelon of government, that establishing the balance of values among various considerations “must be given to the public’s elected representatives and not to the court” (ibid.). The explanatory notes further clarified that the proposed amendment does not prevent the court from conducting judicial review on the basis of other administrative standards, among them that of proportionality.

            On July 10, 2023, the bill was approved by the plenum in a first reading by a majority of 64 in favor and 56 opposed.

23.       The preparatory stage for a second and third reading began on the following day, and four debates on the bill were held over the next nine days, as well as three debates on objections that had been filed in that regard. In the course of the Committee’s debates during this stage of preparation of the Amendment Bill for a second and third reading, the opinions of several legal experts and professionals were heard. During the meeting on July 11, 2023, the legal advisor of the Ministry of Finance, Advocate Assi Messing, warned of the consequences of the bill and referred, inter alia, to its significance in regard to the appointment and dismissal of senior gatekeepers and to the fact that the bill would allow the Minister of Finance to intervene in professional decisions, contrary to the existing procedures in the Ministry of Finance.

24.       On July 12, 2023, the Committee addressed various possibilities for “softening” the application of the bill. Advocate Blay emphasized that the proposed framework was far more sweeping than other frameworks presented by those who had appeared before the Committee, in that it did not distinguish between different types of decisions by the elected echelon and did not allow for the possibility of intervening in “irrational” decisions. Advocate Blay pointed in particular to three subjects in which “more delicate and carful models” should be considered: intervention in the decisions of an interim government, appointments, and infringements of individual interests that do not infringe rights (Transcript of meeting no. 121 of the Constitution Committee of the 25^th Knesset, 11-13 (July 12, 2023) (hereinafter: Transcript of meeting 121)). In that meeting, Advocate Limon emphasized that the Amendment Bill is “the most extreme bill possible for addressing the reasonableness standard” and noted that although the scope of cases in which the Court intervened in governmental decisions on the basis of reasonableness was not large, the standard had a very significant effect on the development and formulation stages of the decisions of government ministers (ibid., 34 and 39). Advocate Limon further noted the most serious and significant harm deriving from the Amendment Bill was to the gatekeepers in all that related to their appointment and the possibility of their dismissal for political reasons.

            That same day, a new draft of the amendment was distributed to the members of the Committee, which was the draft ultimately adopted. The draft included the removal of the wording in regard to the application of the section to “any elected official as shall be established by law” and the addition of a clarification of the scope of its application to the end of the original bill:

Notwithstanding what is stated in this Basic Law, a holder of judicial authority under law, including the Supreme Court, shall not address the reasonableness of a decision by the Government, the Prime Minister or another minister, or of any other elected official as shall be established by law, and will not issue an order against any of them in such a matter; in this section, “decision” means any decision, including in matters of appointments, or a decision to refrain from exercising authority.

25.       On July 13, 2023, the Committee held a third debate on the Amendment Bill in preparation for a second and third reading. In the course of that debate, the representative of the Attorney General, Advocate Avital Sternberg, argued that the changes introduced to the amendment constituted its “aggravation”. This was the case because the amended bill granted immunity to judicial review only to those holding the greatest governmental power, and according to it, the amendment also applies to individual decision and not just to fundamental policy decisions.

            In the course of the debate, MK Rothman noted that there was no need for grounding the duty of ministers to act reasonably in the Basic Law, and there was no need for a distinction between individual decisions and policy decisions  or between unreasonableness and extreme unreasonableness inasmuch as such distinctions “don’t work in the real world” (Transcript of meeting no. 125 of the Constitution Committee of the 25^th Knesset, 15 (July 13, 2023) (hereinafter: Transcript of meeting 125)). As for the application of the Amendment Bill to decisions by a civil servant to whom the minister’s authority had been delegated, MK Rothman and Advocate Blay agreed that the identity of who actually made the decision should be examined, and if the person who made it was not the minister, the amendment would not apply. Advocate Blay noted, however, that this would not suffice to neutralize the incentive for the minister to make the decision in order to render it immune to judicial review. MK Kariv noted that the Amendment Bill was extreme in three ways: it did not apply exclusively to the government acting as a whole, but also to all decisions by ministers; it did not distinguish between policy decisions and individual decisions; and it did not suffice by returning the reasonableness standard to its former scope prior to the Dapei Zahav decision but entirely abolishes it.

            At the end of the meeting held on July 16, 2023, MK Rothman announced that objections to the Amendment Bill could be submitted until the following morning.

26.       At the Committee’s meeting on July 17, 2023, Advocate Afik noted that an unprecedented number of more that 27,000 objections had been submitted in regard to the Amendment Bill, and referred to the guideline of the Knesset’s legal advisor in regard to “Debating and Voting upon Objections in the Preparation of Bills for a Second and Third Reading” (Aug. 1, 2021) (hereinafter: the Objections Protocol), that was intended to contend with situations in which thousands of objections were submitted. Advocate Afik presented a number of possibilities for addressing the objections but suggested that in view of the exceptional number, if the members of the opposition preferred one of the possibilities, the Committee chair should adopt that one. When no agreement was reached between the coalition and the opposition, MK Rothman chose the option according to which there would be a summary presentation of all the objections, and following that, a vote would be held on the objections in groups of 20 at a time. The explanation of the objections took some 18 additional hours. In the end, all of the objections were defeated, and on July 19, 2023, the Committee approved the Amendment Bill by a majority vote of nine in favor and seven opposed. Objections raised by several members of the opposition factions in regard to defects in the Committee’s vote were rejected by Advocate Afik.

            On July 19, 2023, a debate was held in the Knesset House Committee on the application of sec. 98 of the Knesset Rules that allows the House Committee to lay down special procedures for debates on budget laws and “in other exceptional cases”, including laying down a framework for the debate, and the length of speeches in the plenum. The Knesset House Committee ruled that members of the opposition could explain their objections over the course of 26 hours, after which a vote on 140 objections would be held in the plenum at the choosing of the opposition. On July 23, 2023, the debate began in the Knesset plenum, and on July 24, 2023, the bill was approved in a third reading by a majority of 64 members of Knesset without opposing votes, after the opposition factions boycotted the vote.

            The Amendment came into force on July 26, 2023, upon its publication in the Official Gazette.

 

The Petitions

27.       Eight petitions against it were filed shortly after the approval of the amendment to the Basic Law, all of which asked the Court, inter alia, to declare the amendment void. The petitions were filed by civil society organizations and by individuals, and one was filed by the Israel Bar Association (the Petitioner in HCJ 5663/23). A decision by Justice D. Mintz on July 26, 2023, dismissed requests for an interim order to prevent the Amendment’s entry into force until the issuing of a decision on the petitions, and seven of the petitions were set for a hearing before a panel. An additional petition that was subsequently filed in HCJ 5769/23 (hereinafter: the Numa Petition) was joined with the other seven petitions, and addressing additional petitions against the Amendment submitted thereafter was put on hold until the issuing of a decision on the petitions before us.

            On July 31, 2023, I ordered that the petitions be hard before an expanded panel of 15 justices, and on August 9, 2023, the panel granted an order nisi as requested in the petitions for the sake of the efficient handling of the petitions and without expressing any position on the merits. In a decision issued that same day, we ordered the joining of the organization “Adam Teva V’Din – Israeli Association for Environmental Protection” (hereinafter: Adam Teva V’Din), the Association for Civil Rights in Israel, and 37 additional civil-rights organizations (hereinafter, for simplicity: the Association) as amici curiae.

28.       In preparation for the hearing of the petitions, the Respondents filed Affidavits in Response on their part. The Attorney General presented the position that the Amendment strikes a mortal blow to the fundamental principles of democracy, that the petitions should be granted, and that the Amendment should be declared void by reason of the Knesset’s deviation from the bounds of its constituent power and abuse of that power. As opposed to that, the Government, the Prime Minister and the Minister of Justice (hereinafter: the Government Respondents) – who were represented by counsel independent of the Office of the Attorney General – and the Knesset and MK Rothman –who were represented by counsel independent of the Office of the Knesset Legal Advisor – argued that the Court lacked jurisdiction to intervene in the Amendment and that even on the merits, there were no grounds for intervening therein.

29.       On September 12, 2023, we heard the parties’ oral arguments. In the course of the hearing, the parties addressed the issues of principle concerning the conducting of judicial review over Basic Laws and the specific amendment at the focus of the petitions at length. At the end of the hearing, we permitted the Knesset and the Government Respondents to submit Supplemental Briefs in writing in regard to a number of issues that arose in the course of the hearing. The Supplemental Brief of the Government Respondents was submitted on October 16, 2023, and that of the Knesset on November 9, 2023.

 

Summary of the Arguments of the Parties

30.       The main argument of the Petitioners is that the amendment that is the subject of the petitions is an “unconstitutional constitutional amendment” and that it must, therefore, be declared void. In this regard, the Petitioners refer to this Court’s holdings in HCJ 5555/18 Hasson v. Knesset [39] (hereinafter: Hasson) that stated that the constituent authority is not authorized to deny the core characteristics of the State of Israel as a Jewish and democratic state, but which did not decide upon the question of the Court’s jurisdiction to conduct judicial review in that regard. The Petitioners are of the opinion that jurisdiction is necessary by virtue of the institutional role of the Court in our system, due to the absence of a fixed procedure for legislating Basic Laws and for their amendment, and due to the structural weakness of the separation of powers in Israel. It was further argued that sec. 15 of the Basic Law, which sets out the broad jurisdiction of the High Court of Justice to grant relief “for the sake of justice” and to issue orders to “all state authorities” should also be viewed as a source of authority for review of the constituent authority. Not recognizing the jurisdiction of the Court in this regard, it is argued, means that any legislation by the Knesset enacted by a transient coalition majority would be immune to judicial review by means of labelling it a “Basic Law” even if it comprises a denial of the core characteristics of the State of Israel.

31.       According to the Petitioners, the amendment that is the subject of the petitions seriously infringes the nuclear characteristics of Israel as a democratic state.  First, it is argued that the Amendment infringes the principle of the rule of law, in that it permits the elected echelon to act however it wishes, without judicial oversight. According to the Petitioners, the significance of the Amendment is the effective abolition of the duty of the Government and its members to act reasonably. Second, the Petitioners argue that the Amendment severely infringes the separation of powers in that it concentrates unprecedented governmental power in the hand of the Government. It is further argued that, in practice, the Amendment denies the right of access to the courts in regard to many administrative decisions. The amici curiae went into detail in this regard as to the important rights and interests that could not, in their opinion, be protected in the absence of the reasonableness standard.

            The Petitioners add that the harm caused by the Amendment is particularly severe in view of Amendment’s broad language, which entirely denies the reasonableness standard in regard to every type of decision by the Government and its ministers, including decisions in concerning the individual, for which there is no justification that they be immune from judicial review. It is further argued that that there are entire areas in which the only limit upon the Government’s power is the reasonableness standard, among them the area of appointments and dismissals in the civil service and decisions made during period leading up to elections. The Numa petition further notes that the Amendment will seriously harm the ability of members of the armed forces to defend themselves against being charged for breaches of the rules of international law.

            The Petitioners also ask that the Court take note of the fact that, in parallel to the Amendment, additional steps are being advanced as part of a comprehensive plan for changing the legal system that is intended to weaken and seriously harm its independence and grant absolute power to the coalition majority.

32.       The Petitioners further argue that the Amendment should also be voided as an instance of abuse of constituent power. According to the Petitioners, the Amendment, as enacted, does not meet the supplementary tests established in HCJ 5969/20 Shafir v. Knesset [40] (hereinafter: Shafir) for identifying a constitutional norm. In this context, the Petitioners focus upon the generality test and the test of compatibility to the constitutional fabric. In regard to the generality test, it is argued that the Amendment – which went into immediate force – is a personal amendment primarily intended to benefit the current Government and grant it the ability to act without oversight. As for the compatibility test, it is argued that there is nothing in the Basic Laws that is anything like the provision treating of the abolition of a cause of action or a specific standard of judicial review, and that such a provision should be enacted in a regular statute. In the absence of any justification for grounding the provision in a Basic Law – other than the desire to make it immune to judicial review – it is argued that the Amendment should be decreed void. Alternatively, some of the Petitioners ask that the Amendment’s entry into force be postponed until the next Knesset.

33.       The Petitioners also claim that there were defects in the legislative process that also justify voiding the Amendment. Thus, they argue that the Amendment Bill could not be advanced as a bill on behalf of the Constitution Committee under sec. 80 of the Knesset Rules, and that the choice of that path was intended to circumvent the established arrangements that apply to government and private member’s bills. The Petitioners further argue that there was also a substantive flaw in the principle of the participation of the members of the Knesset as defined in HCJ 10042/16 Quintinsky v. Knesset [41] (hereinafter: Quintinsky). In that regard, it is argued that the debates upon the Amendment were conducted over only three weeks, without a comprehensive debate upon the consequences of the Amendment, among them the consequences for the armed forces and state security; that in the course of the debates the participants were subjected to insults and denied the right to speak, in a manner that undermined their ability to participate in the legislative process; that the use of sec. 98 of the Knesset Rules, which is intended to shorten the debate on bills in extraordinary, extreme circumstances, also undermined the legislative process.

34.       As noted, the Attorney General supports the view of the Petitioners and is of the opinion that the Amendment should be declared void. In her opinion, this Court’s jurisdiction to conduct judicial review over the content of Basic Laws should be recognized. Like the Petitioners, the Attorney General is of the opinion that such jurisdiction derives from the institutional role of the High Court of Justice to ensure that state authorities – including the constituent authority – do not deviate from their authority, and that its source is in the jurisdiction of the Court to grant relief under sec. 15(c) of the Basic Law. In this regard, the Attorney General also refers to the excessive ease by which Basic Laws can be constituted and to the unique institutional structure of the State of Israel and argues that in the absence of judicial review there is no way to contend with a constitutional amendment that denies the nuclear characteristics of the State of Israel as a Jewish and democratic state.

35.       The Attorney General is of the opinion that the amendment that is the subject of the petitions is an exceptional case for which there is no recourse other than the Court’s intervention, inasmuch as it is an unprecedented amendment that strikes a mortal blow to the existing safeguards for restraining the power of the majority. According to the Attorney General, we are concerned with a sweeping amendment that applies not only to broad policy decisions but also to many ministerial decisions that are of a clearly professional, practical nature. It is further argued that as opposed to the arguments voiced by the supporters of the Amendment in the Committee’s debates, parliamentary oversight cannot serve as an effective alternative to judicial review on the basis of reasonableness, and that other standards – like that of proportionality – are insufficient for filling the “normative void” created by the abolition of the reasonableness standard.

            The Attorney General adds that the Amendment severely harms the rule of law, in that it places the elected echelon “above the law”, considering that the courts – and as a result, the government legal-advice system – are left without effective tools for overseeing that the Government and the ministers fulfil their duty to act reasonably. In her opinion, the Amendment may lead to irreversible harm to the independence of the gatekeepers, fundamentally change the core character of the of the civil service, and could harm equality in the electoral system, inasmuch as the ruling Government would be free to employ its power and resources during the period leading up to the elections without the Court being able to examine the reasonableness of its decisions. The Attorney General emphasizes that the Amendment itself strikes a mortal blow to the core characteristics of the state’s democratic regime. The Attorney General adds that note should also be taken of the fact that the Amendment is part of a broader plan to change the legal system, which may cause irreversible harm to the Court’s ability to fulfil its constitutional role in a democratic state.

36.       Like the Petitioners, the Attorney General further argues that the Amendment was enacted through an abuse of constituent power, while primarily emphasizing in this regard its not meeting the constitutional-fabric test. She argues that grounding a provision that abolishes a specific standard of judicial review in regard to the Government and its ministers in the Basic Laws is foreign to the overall constitutional fabric. There is good reason why limitations upon the authority of judicial institutions have, until now, been enacted in regular statutes and regulations. The Attorney General emphasizes that grounding the Amendment in a Basic Law does not allow for a review of its constitutionality by means of the tests of the limitation clause. The Attorney General adds that the Amendment also presents a problem in terms of the generality test and the distinction test.

37.       According to the Attorney General, it is questionable whether the Petitioners’ arguments in regard to defects in the legislative process would justify voiding the Amendment, but those defects aggravate the other defects in the Amendment. Lastly, the Attorney General notes that while an interpretive solution would generally be preferable to voiding of the Amendment, in the present matter, the Amendment cannot be interpreted in a manner that would leave it in force without the Court rewriting the Amendment. Therefore, and in the absence of alternative remedies that could rectify the severe defects in the Amendment, the Attorney General is of the opinion that there is no alternative to declaring it void.

38.       As opposed to this, the Knesset is of the opinion that the petitions should be dismissed. The Knesset argues that this Court lacks jurisdiction to conduct judicial review over Basic Laws, inter alia, in view of the absence of any clear authorization for such review and the absence of any provisions restricting the constituent authority in constituting Basic Laws. The Knesset emphasizes that sec. 15 of Basic Law: The Judiciary cannot be taken as a source of authority for judicial review of other norms that are also grounded in Basic Laws. In addition, the Knesset argues that conducting judicial review over Basic Laws undermines the basis for conducting judicial review of primary legislation, and that the Court must not establish principles that place limits upon the constituent authority that were not established by the sovereign (the people). The Knesset adds that inasmuch as the Israeli constitutional project has yet to be completed, the theories put forward to ground the doctrine of an unconstitutional constitutional amendment are inappropriate to Israel. Therefore, it is argued that even if there are limitations upon the constituent authority, the Court should not be permitted to oversee their being abided.

39.       In any case, the Knesset is of the opinion that the petitions should be dismissed in limine for lack of ripeness, as no factual foundation has been formed for examining the consequences of the Amendment. It argues that the language of the Amendment is ambiguous, and it is not yet clear how it will be interpreted by the courts. In addition, it is not yet clear whether the Knesset has the ability to employ parliamentary tools to enforce the reasonableness duty that continues to apply to the Government and the ministers. The Knesset further argues that the petitions are also not ripe because the implementation of the Amendment is dependent upon the conduct of the Government and the ministers in the new legal situation.

40.       Should the Court choose to decide upon the question of the constitutionality of the Amendment at this time, the Knesset is of the opinion that it does not reach the level of an unconstitutional constitutional amendment, inasmuch as it does not harm the core of the nuclear characteristics of the state. In this regard, it is argued that in the course of the Committee’s debates, the Knesset legal advisors noted the problems that arise from it and suggested alternative wordings for the Amendment, but not accepting the said recommendations does not mean that the Amendment, as approved, is unconstitutional. The Knesset is of the opinion that the threshold for conducting judicial review over the content of basic legislation must be higher, similar to the criteria for disqualifying candidates for election to the Knesset under sec. 7A(a) of Basic Law: The Knesset. In the matter before us, it is argued, we are concerned with an amendment that does not entirely deny the judicial review of decisions by the Government and its ministers, but concerns only the abolition of the reasonableness standard, which continues to apply in regard to other governmental agencies. It was further noted that judicial review in regard to the Amendment cannot be based upon the assumption that it is part of a broad, comprehensive process of future changes that would harm the democratic identity of the state.

            The Knesset adds that it is possible to narrow the scope of the Amendment’s application through interpretation. In its view, it can be interpreted in a manner that it would not apply to irrational decisions that could have been voided even prior to Dapei Zahav. The Knesset further notes that new judicial tools can be developed for judicial review in the area of appointments and dismissals and in regard to the decisions of an interim government.

41.       The Knesset emphasizes that the Amendment does not represent an abuse of constituent power because it is a general, stable, and abstract amendment that is appropriate, in its view, to the existing constitutional fabric. As for the Amendment’s immediate entry into force, it is argued that while it is preferable that the application of Basic Laws in regard to the regime be forward looking, in practice many such amendments were enacted with immediate effect and the case law has already made it clear that this fact alone is insufficient grounds for voiding a Basic Law. As for the constitutional-fabric test, the Knesset notes that the “natural place” for establishing rules in regard to judicial review by the Court is Basic Law: The Judiciary, and there is nothing wrong with an amendment that provides an answer to a specific issue and that does not address all of the aspects of judicial review over administrative decisions.

42.       Lastly, the Knesset argues that there was no defect in the legislative process that would justify voiding the Amendment, even though “it was possible to adopt a better legislative procedure than the one actually followed” (para. 224 of the Knesset’s Affidavit in Response). Thus, it is argued that it was possible to advance the Amendment Bill as a bill on behalf of a committee in accordance with the Knesset Rules and that arguments raised in regard to the principle of participation do not even minimally meet the test established in Quintinsky for voiding a law on that basis.

43.       The Chair of the Constitution Committee, MK Rothman, concurs with the Knesset’s position that this Court lacks jurisdiction to conduct judicial review of Basic Laws, and in his opinion, debates concerning Basic Laws should be conducted in the Knesset alone. In the course of the hearing on Sept. 12, 2023, MK Rothman addressed the possibility of narrowing the scope of the Amendment through interpretation, which was suggested in the Knesset’s response, and emphasized that he does not agree with such a position and that in his view, the Amendment deprives the Court of jurisdiction to consider and decide upon arguments that relate to the reasonableness of Government and ministerial decisions in any manner (pp. 37-39 of the Transcript of the hearing).

44.       The Government Respondents argue that the petitions should be dismissed while establishing in principle that there can be no judicial review of Basic Laws. In their view, since the Court established that the it draws its jurisdiction to conduct judicial review of legislation from the Basic Laws, it cannot address their validity, and this is particularly the case in regard to Basic Law: The Judiciary. The Government Respondents note that adopting a doctrine of unconstitutional constitutional amendments in our system would make the State of Israel the only state in which it is possible to apply judicial review to constitutional amendments in the absence of an “eternity clause” in the constitution and in the absence of a complete constitution. In the opinion of the Government Respondents, “in Israel there are no substantive limitations upon the constituent authority” (para. 255 of the Affidavit in Response of the Government Respondents), and it is not possible to rely upon the fundamental principles of the system, the values of the State of Israel as a Jewish and democratic state, or on the values of the Declaration of Independence – which does not constitute a binding legal source – as grounds for justifying judicial review of the content of Basic Laws.

            The Government Respondents further argue that the amendment that is the subject of the petitions is part of a “legitimate constitutional dialogue” between the governmental branches and it is a very far cry from causing harm to the minimum requirements of Israel as a Jewish and democratic state. According to the Government Respondents, limiting judicial review does not present any constitutional problem, particularly when it does not concern basic rights and where it only concerns limiting the use of only one administrative standard. The Government Respondents incidentally note that there is no substance to the arguments raised in the Numa petition in regard to an increased danger of bringing international criminal charges against members of the armed forces as a result of the Amendment, and in any case, the Court does not have jurisdiction to decide whether a law or a Basic Law is good and proper in terms of its significance.

45.       As for the arguments concerning abuse of constituent power, the Government Respondents note that the tests established in Shafir are not binding precedent, and that the doctrine should not be adopted in our system. In any case, it is argued that the Amendment does not violate the tests for identifying a constitutional norm that were established in Shafir. In their opinion, we are concerned with an amendment that is stable, not enacted as a temporary provision, that applies generally and comprehensively to all future Governments, and that is appropriate as an amendment to Basic Law: The Judiciary, which establishes the scope of the Supreme Court’s jurisdiction to issue orders to governmental authorities. The Government Respondents also reject the possibility of judicial review over the procedure for enacting Basic Laws, but emphasize that, in any event, the procedure for enacting the Amendment does not “even come close” to the circumstances addressed in Quintinsky.

            In regard to the remedy, the Government Respondents explain that there is no place for an affirming interpretation that would change the meaning of the Amendment as it arises from the language of the law and the debates in the Knesset. In their view, the result of the Amendment is that “there is no longer any possibility for judicial review on the basis of the reasonableness standard of any kind”, including in regard to decisions that are unreasonable in the extreme or utterly irrational (para. 45 of the Government Respondents Supplemental Brief). It was additionally argued that there is no basis for granting relief in the form of cancelling the Amendment’s immediate entry into force.

 

Examination and Decision

46.       The proceedings before us raise two primary questions. The first question is whether it is possible to conduct judicial review of the content of Basic Laws when it is argued that the Knesset deviated from its constituent power. This is a complex question, and until now, the Court has refrained from deciding it. But it is now the basis of the petitions and requires an answer. In practice, even the Government Respondents, who believe that the petitions should be dismissed, are of the opinion that this matter of principle should be decided.

            The second question, for which the answer is dependent upon the answer to the first question, is whether the amendment that is the subject of the petitions – Amendment no. 3 to Basic Law: The Judiciary – should be voided. In this context, we must address the list of defects that, according to the Petitioners and the Attorney General, justify voiding the Amendment, first among them the argument that it severely harms the core character of the State of Israel as a democratic state and that the Knesset exceeded its constituent power in adopting it.

            I will address these questions in their order, and accordingly, I will first address the question of principle in regard to conducting judicial review of Basic Laws.

 

Part I: Judicial Review of Basic Laws

1. The Power to adopt a Constitution

47.       In order to conduct a comprehensive examination of all that relates to conducting judicial review upon the constituent power of the Knesset, we must again examine the sources of that power and its substance. These aspects have been explained more than once in the case law of this Court and in the legal literature (see, inter alia, CA 6821/93 United Mizrahi Bank v. Migdal Cooperative Village [42] (hereinafter: Mizrahi Bank); Aharon Barak, “The Declaration of Independence and the Knesset as a Constituent Authority,” 11 Hukkim   9 (2018) [Hebrew] (hereinafter: Barak, “Declaration of Independence”); Rivka Weill, “United Mizrahi Bank's Twentieth Anniversary: On the Piquant Story of the Hybrid Israeli Constitution,” 38 Iyyunei Mishpat 501, 501-570 (2016) [Hebrew] (hereinafter: Weill, “Hybrid Constitution”)). I will therefore suffice with a brief survey.

48.       The Israeli constitutional project began on Friday evening, 5 Iyar 5708 (May 14, 1948), when, at a session of the People’s Council, David Ben Gurion read one of the most important documents in our history: The Declaration of the Establishment of the State of Israel (hereinafter: Declaration of Independence). Along with setting out the historical and international justification for the establishment of the state and presenting its vision, the Declaration included an “operative part” (Barak, “Declaration of Independence”, 13):

Accordingly we, members of the People’s Council, representatives of the Jewish Community of Eretz-Israel and of the Zionist Movement, are here assembled on the day of the termination of the British Mandate over Eretz-Israel and, by virtue of our natural and historic right and on the strength of the resolution of the United Nations General Assembly, hereby declare the establishment of a Jewish state in Eretz-Israel, to be known as the State of Israel.

We declare that, with effect from the moment of the termination of the Mandate being tonight, the eve of Sabbath, the 6th Iyar, 5708 (15th May, 1948), until the establishment of the elected, regular authorities of the State in accordance with the Constitution which shall be adopted by the Elected Constituent Assembly not later than the 1st October 1948, the People’s Council shall act as a Provisional Council of State, and its executive organ, the People’s Administration, shall be the Provisional Government of the Jewish State, to be called “Israel.”

            As we see, on the day the state was founded, its obligation to adopt a constitution for Israel was established. This is consistent with what was stated in Resolution 181 of the United Nations General Assembly of November 29, 1948 (hereinafter: the General Assembly Resolution), which served as a “basis for the international legitimacy” of establishing the State of Israel (see: Hasson, para. 6, per Justice M. Mazuz). The General Assembly Resolution established, inter alia, that each of the countries that will be established in Mandatory Palestine will hold elections for a constituent assembly that will draft a democratic constitution in the framework of which the state institutions would be established, and basic rights would be granted to all of its residents (secs. 9 and 10 of Part 1(B) of the General Assembly Resolution; and see in this regard: Joseph Weiler and Doreen Lustig, “A Good Place in the Middle – The Israeli Constitutional Revolution from a Global and Comparative Perspective,” 38 Iyunei Mishpat 419, 455-457 (2016) [Hebrew]).

49.       A few months after the establishment of the state, the Provisional Council of State – which served as the legislature (see: sec. 1 of the Proclamation of the Provisional Council of State of May, 14, 1948 and sec. 7(a) of the Law and Administration Ordinance, 5708-1948) – enacted the the Constituent Assembly Elections Ordinance, 5709-1948, and pursuant to that, the Constituent Assembly (Transition) Ordinance, 5709-1949, which established: “The Constituent Assembly shall […] have all the powers vested by law in the Provisional Council of State” (and see: HCJ 5119/23 Anti-Corruption Movement v. Knesset [43], paras. 11-14, per Justice A. Stein) (hereinafter: Anti-Corruption Movement)). Following the elections, which were ultimately held at the beginning of 1949, the Transition Law, 5709-1949, was enacted. It established: “The legislative body of the State of Israel shall be called the Knesset. The Constituent Assembly shall be called ‘The First Knesset’” (sec. 1). Therefore, the First Knesset held both legislative power (which it inherited from the Provisional Council of State) and the power to establish a constitution (Mizrahi Bank, 362-364).

            Over the course of several months, the First Knesset held a debate upon the need for a constitution in principle and in regard to its contents. The debate ultimately ended in a compromise known as the “Harari Decision”, which was adopted by the Knesset plenum on June 13, 1950. The decision stated: “The First Knesset instructs the Constitution, Law, and Justice Committee to prepare a draft State Constitution. The constitution will be built chapter by chapter, in such a way that each will constitute a separate Basic Law. The chapters shall be presented to the Knesset when the committee completes its work, and all the chapters together shall comprise the Constitution of the State” (Knesset Record – June 14, 1950, 1743). Unfortunately, as a result of that decision, we find ourselves today – more than seventy-three years since its adoption – without a complete state constitution, or as Prof. Aharon Barak aptly described it in his article “The Basic Law Project – Where To?” 14 Mishpat Ve-Asakim 111 (2012) [Hebrew]: “The Harari Decision saved the constitutional project from destruction, at the price of directing it to a parallel track where it moves very slowly” (ibid., 112).

            The First Knesset did not enact any Basic Laws but transferred its constituent power to the ensuing Knessets. It enacted the Second Knesset (Transition) Law, 5711-1951, in which it established: “The Second Knesset and its members shall have all the powers, rights and duties which the First Knesset and its members had” and added that this shall also apply “to the Third  and any subsequent Knesset” (see: secs. 5, 9 and 10 of the law).

50.       In 1958, the Third Knesset enacted the first Basic Law – Basic Law: The Knesset, and several more Basic Laws were enacted thereafter concerning the state’s institutions. The first judgments in which the Supreme Court addressed the status of the Basic Laws primarily concerned breaches of the principle of equality in elections, which was established in Basic Law: The Knesset, which also established that it could not be changed, expressly or impliedly, except by a majority of the Knesset members in each legislative stage (sec. 4 and 46 of Basic Law: The Knesset). In some of those judgments, the Court decreed that provisions that did not meet the special-majority requirement required by Basic Law: The Knesset were invalid (see: HCJ 98/69 Bergman v. Minister of Finance [44] (hereinafter: Bergman); HCJ 246/81 Agudat Derekh Eretz v. Broadcasting Authority [45] (hereinafter: Agudat Derekh Eretz); HCJ 141/82 Rubinstein v. Chairman of the Knesset [46] (hereinafter: HCJ 141/82)). However, in those proceedings, the Court was not required to address the question of the Knesset’s authority to adopt a constitution for Israel on the merits.

51.       In 1992, the first Basic Laws – and the only ones to date – that treat of individual rights were enacted: Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation. These Basic Laws were the first to include a “substantive” entrenchment provision (the “limitation clause”), which establishes that the rights under those Basic Laws cannot be violated “save by means of a law that corresponds to the values of the State of Israel, which serves an appropriate purpose, and to an extent that does not exceed what is required, or on the basis of a law, as aforementioned, by force of an explicit authorization therein” (sec. 8 of Basic Law: Human Dignity; sec. 4 of Basic Law: Freedom of Occupation). Thereafter, proceedings in which arguments were raised concerning the unconstitutionality of laws infringing basic rights and that did not meet the conditions of the limitations clause began to come before the Court.

52.       In the Mizrahi Bank case, a panel of nine justices addressed matters of principle in regard to the status of the Basic Laws. In that case, contrary to the dissent of Justice M. Cheshin, the Court held that in enacting Basic Laws, the Knesset acts by virtue of its constituent power to write a constitution for Israel, and that in terms of the normative hierarchy, the status of those Basic Laws is superior to that of “regular” primary legislation. Therefore, the Court further held in Mizrahi Bank that it is possible to conduct judicial review of primary legislation, and even decree it void, if it does not meet the conditions set out in the Basic Laws. This was the case, in view of the Court’s jurisdiction to examine whether a “a normative provision of a lower status deviates from a higher normative provision” (ibid., 427).

            The judgment presented two competing approaches for grounding the Knesset’s power to enact Basic Laws that enjoy supra-legal normative status that would eventually become the constitution of the State of Israel. President (emer.) Shamgar relied upon “the doctrine of the unlimited sovereignty of the Knesset” according to which the Knesset is not limited in its power, except by the boundaries that it set for itself. In this regard, President (emer.) Shamgar noted:

The Knesset operates in that capacity without any internal allocation or division into different institutions based on one body’s supremacy over another. The Knesset has discretion to decide whether its legislative product will belong to the supreme constitutive level or the regular legislative level, and in enacting constitutional legislation, by virtue of its unlimited powers, it also establishes the supremacy of the constitutional law over the regular law, and is authorized to determine conditions applicable to regular legislation for the purposes of adjusting it to the norms determined in the constitutional legislation (ibid., 285).

            The other justices concurred with this approach in the Mizrahi Bank case.

53.       Another approach, which has taken root in the case law, was presented by President Barak and is referred to as the “constituent authority doctrine” (see, inter alia: HCJ 4908/10 Bar-On v. Knesset [47] 291 (hereinafter: Bar-On); Hasson, para. 17 of my opinion, and para. 4 of the opinion of Justice N. Hendel; Amnon Rubinstein and Barak Medina, The Constitutional Law of the State of Israel, vol. I: Institutions 78 (6^th ed., 2005) [Hebrew] (hereinafter: Rubinstein & Medina); Uri Aharonson, “The Constitutional Revolution: The Next Generation,” 34 Mechkarei Mishpat 1, 4 (forthcoming) [Hebrew]). According to this approach – with which Justices D. Levin, I. Zamir and E. Mazza concurred (the other justices refrained from expressly deciding between the two approaches) – the Knesset wears two primary “hats” or “crowns”: the constituent authority hat, by virtue of which it constitutes a constitution, and the legislative authority hat, by virtue of which it enacts laws (Mizrahi Bank, 356).

            In his opinion, President Barak emphasized that the Knesset did not create its constituent power, and that it is a power that “derives from the sovereign, i.e. the people” (ibid.). President Barak went on to survey a list of “constitutional data”, among them – the Declaration of Independence, the Harari Decision, the adopting of twelve Basic Laws, the case law, the Knesset’s reaction to the decisions of the courts, and the view of the legal community that, in his view, testify to the constituent power of the Knesset. On the basis of this data, President Barak presented three legal-theory models that, in his view, all lead to the conclusion that the Knesset is indeed granted constituent power. President Barak found all the more support for this conclusion in that the three models led to an identical conclusion:

1. The Constitutional Continuity model, according to which the “grundnorm” of the State of Israel – “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” (ibid., 359) – is that the Provisional Council of State is the supreme legislative institution of the State. According to this model, which is based upon the approach of constitutional law scholar Hans Kelsen, the Provisional Council of State decreed in the Declaration of Independence that a constitution would be enacted by the Constituent Assembly, and that power passed by the “constitutional continuity” described above to every Knesset from then until today.
2. The Rule of Recognition of the System model, based upon the approach of Prof. H.L.A. Hart, according to which the rule that determines how primary norms are created in the state and their relative normative status is that “the Knesset is endowed with both constituent and legislative authority” and this reflects the “system of national life” of the State (ibid., 357).
3. The Best Interpretation of Social and Legal History model of the system in a given time, based upon the approach of Prof. Ronald Dworkin, according to which “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” (ibid., 358).

54.       As we see, since the judgment in Mizrahi Bank, and even though the process of constituting a constitution has not been completed, the Basic Laws are viewed “in the political and public tradition as part of the constitution of the State” (Bar-On, 299). Accordingly, the view that the “legislative products of the Knesset in its hat as a legislative authority are subject, in terms of their normative level, to the Basic Laws that hold constitutional status” has become established (Hasson, para. 17 of my opinion).

55.       A form test was established in Mizrahi in regard to the question how one can identify constitutional norms. According to this test, “the Knesset uses its constituent authority… when it gives external expression in the name of the norm, denoting it a ‘Basic Law’ (without specifying the year of enactment)” (ibid., 403). Along with this holding, the Court in Mizrahi Bank left two questions for further consideration. First, the question was asked what would happen in regard to “future Knesset legislation that might ‘abuse’ the term ‘Basic Law’ by designating as such regular legislation with no constitutional content” (ibid., 406) (emphasis added). President Barak noted in this regard that “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)” (ibid.). Second, it was noted that a need for “a determination as to whether certain provisions set forth in the Basic Law deviate from constituent authority” might arise (ibid., 394) (emphasis added). In this regard, President Barak noted that courts around the world examine the constitutionality of constitutional amendments, and that more than one such amendment has been invalidated for substantive reasons as well, but this issue was also left for further consideration in Mizrahi Bank.

            Over the last few years, as will be explained in detail below, these questions have been raised in a number of petitions filed against Basic Laws and amendments to Basic Laws enacted by the Knesset.

 

2. Abuse of Constituent Power

56.       As noted, Mizrahi Bank did not thoroughly examine the possibility that the Knesset might abuse its constituent power and recognize a norm as a Basic Law although inappropriate to be part of a future constitution in terms of its characteristics. The need to address this possibility and to reexamine the form test for identifying Basic Laws first arose against the background of increasing use of constituent power to enact amendments to Basic Laws as temporary provisions. Thus, Bar-On addressed an amendment to a Basic Law that established in a temporary provision that the state budget for the years 2011 and 2012 would be a two-year budget. President Beinisch noted in this regard that a temporary provision inherently “contradicts the basic idea whereby the provisions of the constitution are fixed, and some would say even eternal” (ibid., 300). She added that “in certain circumstances, which cannot be determined in advance, it is possible that the enactment of a basic law as a temporary provision may amount to ‘misuse’ of the title ‘Basic Law’” (ibid., 301). In regard to the specific amendment addressed in Bar-On, the Court rejected the argument that it should be voided due to abuse of constituent power, but explained that it would be better if the Knesset refrain in the future from using temporary provisions for amending constitutional provisions (ibid., 307).

57.       Despite the Court’s comments in Bar-On, the Knesset continued to change Basic Laws by means of temporary provisions in order to approve two-year budgets. The fifth time that occurred, the Court granted relief for the first time on the basis of the “abuse of constituent power” doctrine, and issued a nullification notice according to which, in the future, it would not be permissible to adopt a budget that it not annual by means of a temporary provision (HCJ 8260/16 Academic Center v. Knesset [48] (hereinafter: Academic Center)). Deputy President (emer.) E. Rubinstein held that “where an abuse of the majority’s power is identified in a constitutional text, the political need retreats before ‘the constitutional core’ and its ‘sanctity’, its legal importance and its importance in terms of values” (ibid., para. 30). Deputy President (emer.) S. Joubran added that the “abuse” doctrine is not limited to circumstances of enacting basic legislation as a temporary provision, and that “basic legislation as a temporary provision is, therefore, just one unfortunate expression of exploiting this ‘constitutional gap’ left by the form test” (ibid., para. 7 of his opinion).

58.       Some four years later, judgment was handed down in Shafir, which addressed Amendment no. 50 to Basic Law: The Knesset that was enacted as a temporary provision and comprised, inter alia, an indirect amendment of Basic Law: The State Economy that resulted in the raising of the continuation-budget ceiling for 2020 by 11 billion shekels. In that case. The nature of the abuse of constituent power doctrine was examined along with the source of the Court’s authority to conduct judicial review thereunder:

The center of gravity of the doctrine of abuse of constituent power is, as noted, the question whether the norm grounded in the Basic Law is, indeed, on the constitutional plane under our tests for identifying such legislation. The task of identifying a norm as a legal norm on a particular normative level, including the constitutional level, is at the core of the Court’s role […] In other words, the Court’s role is to defend the developing constitution against the infiltration of norms that are not of the appropriate status into the constitutional fabric in a manner that might erode and trivialize the status of the Basic Laws (ibid., para. 31 of my opinion).

            It was explained that this doctrine is concerned with the identification of the norm under discussion as a constitutional norm in accordance with its the formal-procedural characteristics, as opposed to judicial review of the content of the norm. For that purpose, my opinion presented a two-stage test intended to guide the Court in examining whether the Knesset abused its constituent power. At the first stage, “the identification stage”, the Court will examine whether the Basic Law or its amendment bears the formal characteristics and hallmarks of constitutional norms. To that end, several supplementary tests were established, which do not form a closed list: (1) The stability test, which examines the question of whether we are concerned with an arrangement that is permanent, stable and forward-looking, as is required of constitutional norms intended to establish the character of the state over time; (2) The generality test, which addresses whether the norm has general, abstract application that relates to a non-specific group, as opposed to a personal norm; (3) The compatibility to the constitutional fabric test, which examines whether the norm is consistent with the character of those subjects already arranged in the Basic Laws. If the law does not meet one or more of those characteristics, then, in the second stage – “the justification stage” – the burden shifts to the respondents to show a special justification for establishing an arrangement that is not of a constitutional character specifically in the framework of the Basic Laws (and compare the opinion of Justice Barak-Erez in Shafir, who was of the opinion that instead of the compatibility to the constitutional fabric test, we should adopt a “distinction” test that examines whether the arrangement grounded in the Basic Law clearly intrudes into an area that is the responsibility of one of the other three branches of government, and recommended that we abandon the justification stage, such that a provision that does not meet the recognition tests cannot be deemed basic legislation).

            The judgment held, by a majority of six of the nine justices on the panel, that Amendment no. 50 of Basic Law: The Knesset lacked the identifying characteristics of a constitutional norm and that the Knesset had abused its constituent power. However, it was held in that matter that it would suffice to issue a “nullification notice” stating that Basic Law: The State Economy could not be amended in a similar way in order to increase the continuation-budget ceiling. The minority (Justices Sohlberg, Mintz and Elron) dissented in regard to adopting a doctrine that deviates from the form test for identifying Basic Laws based upon their title.

59.       The abuse of constituent power doctrine – first presented in Bar-On, recognized and first applied in Academic Center, and developed into concrete tests in Shafir – has taken root in the case law, and additional constitutional amendments have been examined in accordance with it over the last years (see: HCJ 2905/20 Movement for Quality Government v. Knesset [49] (hereinafter: the Rotation Government case); and Scheinfeld). This was, inter alia, in view of a pattern of significant regime changes “executed ad hoc, sometimes by means of temporary provision, for immediate implementation (sometimes exclusively) by the Knesset that executed them” (the Rotation Government case, para. 11 of my opinion; and see Scheinfed, para. 42 of my opinion, and para. 4 of the opinion of Justice O. Groskopf). There is, therefore, no substance to the claim by the Government Respondents that the abuse of constituent power doctrine “was never accepted as binding precedent by the Court” (para. 148 of the Government Respondent’s Affidavit in Response). As detailed above, this doctrine was addressed more than once before expanded panels of this Court and was repeatedly adopted by a majority of the Court. In two of those proceedings, the petitions were even granted by reason of the Knesset’s abuse of constituent power, although the constitutional remedy granted was forward looking.

            We can summarize in saying that in the framework of the abuse of constituent power doctrine, the Court focuses on identifying the norm under review and upon the question of whether it is appropriate, in terms of its characteristics, to be found at the constitutional level (the Rotation Government case, para. 2 of my opinion). It does not conduct judicial review of the content of basic legislation in the framework of this doctrine (see: Academic Center, para. 5, per Deputy President (emer.) Joubran).

 

3. Deviation from the Knesset’s Power as a Constituent Authority

60.       A separate question is that of whether there can be situations in which there is no flaw in titling a norm as a “Basic Law”, but the substantive content of the norm leads to the conclusion that it constitutes a “deviation from constituent authority” of the Knesset (Mizrahi Bank, 394). This issue is examined in comparative law by means of the “unconstitutional constitutional amendment” doctrine, which is accepted in various legal systems. In accordance with this doctrine, there are substantive limits upon the power to amend the constitution, and the courts void constitutional amendments that deviate from those limits (for a detailed discussion of this subject, see: Yaniv Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (2017) (hereinafter: Roznai).

61.       Research conducted on the subject found that some 40% of the constitutions in the world comprise explicit restrictions upon amending the constitution. These restrictions are grounded in “eternity clauses” established in the constitution itself, and they prohibit changing or amending certain parts of it (Yaniv Roznai, “Misuse of Basic Laws”, in Judge Elyakim Rubinstein Book, vol. II 1349, 1353 (Aharon Barak et al. eds.) (2021) [Hebrew]). Eternity clauses reflect the decision of the constituent body that certain provisions of the constitution are basic conditions of the state’s identity and existence, and it must, therefore, be ensured that “they will survive for generations without reliance upon the one majority or another” (Hasson, para. 13 of my opinion). In some of those constitutions, the eternity clause is accompanied by an express provision empowering the court to examine the constitutionality of constitutional amendments in accordance with those clauses (see: Aharon Barak, “An Unconstitutional Constitutional Amendment,” in Gavriel Bach Book 361, 373 (David Hahn et al. eds. 2011) (hereinafter: Barak, “Constitutional Amendment”)). Similarly, there are countries in which even in the absence of such and explicit provision, the court is viewed as the body authorized to examine whether the eternity clause has been breached (see: Roznai, 203). The most salient example in this regard is Germany. The German Basic Law establishes that the provisions regarding, inter alia, human dignity, the federal division of the states, and Germany’s being a social democracy (sec. 79(3) of the Grundgesetz). Over the years, the German Constitutional Court has viewed itself as holding jurisdiction to decide whether a constitutional amendment breaches the restrictions established in the constitution in this regard even though there are no express grounds for this jurisdiction in the text of the constitution (see, e.g.: 30 BVerGE 1 (1970); 109 BVerGE 279 (2004). A similar example can be found in Brazil, on which see: Conrado Hübner Mendes, “Judicial Review of Constitutional Amendments in the Brazilian Supreme Court,” 17 Fl. J. Int’l. L. 449 (2005)).

            Another model of the unconstitutional constitutional amendment doctrine relies upon the existence of implied limitations upon amending the constitution. Thus, in India we find the “basic structure” doctrine, according to which the power to amend the constitution does not include the power to entirely rewrite its identity or basic character (see: Roznai, 42-47). The Indian Supreme Court held that it holds the authority to conduct substantive judicial review of constitutional amendments by virtue of this doctrine, and over the years it has voided a number of constitutional amendments (see, inter alia: Minerva Mills v. Union of India [161]; Supreme Court Advocates-on-Record Ass'n v. Union of India [162]; on other countries that have implied restrictions upon the constitution, see: Roznai, 47-69).

62.       In any case, the above models apply in countries that have complete constitutions constituted upon the “original” constituent power, and the express or implied limitations are applied thereby upon the “derivative” power to amend the constitution (in regard to the distinction between “original” or “primary” constituent authority and “derivative” or “secondary” constituent power, see: Claude Klein, “The Constituent Power before the Supreme Court: After the Bank Hamizrahi Case”, 28 Mishpatim 341, 355-356 (1997) [Hebrew]; Aharon Barak, Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation, vol, I – The Theory of Constitutional Rights (I. Zamir, ed., 2023) (hereinafter: Barak: Theory of Constitutional Rights)). These models cannot be applied as such in Israel, where the task of drafting a constitution has not yet been completed and is still being created “chapter by chapter”. That being the case, the use of the term “constitutional amendment” raises problems in our system (see: Barak, “Constitutional Amendment”, 379). Indeed, although this Court has referred to the existence of basic principles at the foundation of the state’s identity on several occasions (see, e.g.: CA 733/95 733/95 Arpal Aluminum v. Klil Industries [50] 629-630 (hereinafter: Arpal); HCJ 6427/02 Movement for Quality Government v. Knesset [51] 717 (hereinafter: The Tal Law case)), the question of the applicability of the “unconstitutional constitutional amendment” doctrine in Israel was left for further consideration, while emphasizing the difficulty in adopting models from comparative law into our system in this context (see: Bar-On, 309-311; Academic Center, para. 35, per Deputy President (emer.) E. Rubinstein, and para. 15, per Justice U. Vogelman; HCJ 5744/16 Ben Meir v. Knesset [52] para. 25 of my opinion (hereinafter: Ben Meir)).

63.       The most significant discussion on the limits of the constituent authority appears in Hasson, which addressed the constitutionality of Basic Law: Israel – The Nation State of the Jewish People (hereinafter: Basic Law: The Nation). In that matter, it was noted that the question of adopting a comprehensive doctrine for examining the constitutionality of amendments to the constitution would best be addressed when the completed Basic Law project has become a full constitution. However, it was emphasized that “the significance of that is not necessarily that in the absence of a comprehensive doctrine, the constituent power of the Israeli constituent authority is unlimited” (ibid., para. 15 of my opinion) (emphasis original). In this regard, we explained that two separate questions needed to be addressed: “The first question is whether there already are any substantive (content-based) limitations on the Knesset’s constituent power; the second – if there are such limitations, do they grant this Court the authority to conduct substantive judicial review of Basic Laws […]” (ibid., para. 16 of my opinion) (emphasis original). The first question was answered with a ringing, clear “yes” in Hasson. Answering the second question was not required for deciding Hasson, and it now stands before us.

 

C. 1.    The Limits upon the Power of the Constituent Authority

64.       The judgment in Hasson first established in no uncertain terms that the power of the Knesset wearing its constituent authority hat is not unlimited and it is not authorized to deny – in law or in practice – the core identifying characteristics of Israel as a Jewish and democratic state. In this regard, it was noted that “our constitutional edifice is not complete, and it is certainly possible that floors and extensions may be added to it along the way, but its support columns – the Jewish column and the democratic column – have already been set in place. Negating either of them leads to the collapse of the entire structure” (ibid., para. 18 of my opinion). Nine of the eleven justices on the panel concurred with this conclusion (Justices Sohlberg and Mintz refrained from directly addressing this issue and focused upon the problems related to judicial review of the Basic Laws).

65.       The conclusion in regard to the existence of restrictions upon the power of the Knesset to adopt a constitution can be learned from the constitutional text and the constitutional system as a whole, as developed since the earliest days of the state. The Declaration of Independence, which charged the “Elected Constituent Assembly” with the task of adopting the constitution, defined Israel as a Jewish state and gave clear expression to its democratic character as a state committed to equal rights and the freedoms of the individual. While the attorney for the Government Respondents repeatedly emphasized, in writing and orally, that the Declaration itself does not have binding legal status, it would seem that no one disputes that, in practice, this Declaration grounds “the foundational concepts of the State until this day” (EA 1/88 Neiman v. Chairman of the Central Elections Committee [53], 188 (hereinafter: Neiman)). This is the “birth certificate” of the state and it expresses the national vision (Kol Ha’am, 884; Mizrahi, 309): Israel is a Jewish state. Israel is a democratic state.

            The Basic Laws also reflect the fact that Israel is a Jewish and democratic state, and this is its “identity card” (Hasson, para. 19 of my opinion). Thus, sec. 1A of Basic Law: Human Dignity and Liberty and sec. 2 of Basic Law: Freedom of Occupation refer to “the values of the State of Israel as a Jewish and democratic state”; and sec. 7A(a)(1) of Basic Law: The Knesset makes it possible to deny the right to be elected to the Knesset to a person who negates “the existence of the State of Israel as a Jewish and democratic state”. Similarly, there are “regular” laws that expressly include the term “Jewish and democratic state”, along with many other laws that establish the identity of the state as such by their substance, among them the Law of Return, 5710-1950 (hereinafter: the Law of Return) and laws concerning the prohibition of discrimination (for a detailed list, see Hasson, para. 22 of my opinion). The case law has also noted over the years that the Jewish character of the state is “its clear hallmark among the nations and the states” and that its democratic character is its “life breath” (EA 11280/02 Central Elections Committee v. Tibi [54], 101 (hereinafter: Tibi); Neiman, 188; and also see: HCJ 466/07 Gal-On v. Attorney General [55] 63).

            From the above we can conclude:

The Declaration of Independence defined the character of the state as Jewish and democratic; the Basic Laws expressly grounded these elements in the identity of the state; the legislation and case law strengthened and fortified them; and the history of the nation has repeatedly demonstrated that this is its character since its inception. Therefore, it would appear that even though the constitutional project has not yet been completed, the identity of the State of Israel as a Jewish and democratic state cannot be disputed (Hasson, para. 23 of my opinion; and also see: ibid., para. 2, per Deputy President H, Melcer).

66.       The conclusion in regard to the boundaries of the constituent power directly derives from those “constitutional data” that ground the very existence of the constituent power. In other words, the basis for the conclusion as to the boundaries of the constituent power granted to the Knesset is, in my opinion, the existing constitutional system in its entirety – i.e., those “constitutional data” upon which the upon which the theory of the constituent power was formed from the outset. This, as opposed to other approaches that deduce the existence of limitations upon the constituent power from “framework rules” established in the Declaration of Independence (Barak: Theory of Constitutional Rights, 282-283; and see: Ariel Bendor, “The Legal Status of the Basic Laws,” in Berenson Book, vol. II (A. Barak and H. Berenson, eds., 2000) [Hebrew] (hereinafter: Bendor, “Legal Status”)) or from unwritten supra-constitutional principles (see the approach of Justice Cheshin in Arpal, 629 and in The Tal Law, 761). Justice Hendel defined this well in noting that the most appropriate interpretation of the entire constitutional history of the State of Israel since its inception is that the Knesset’s power to adopt a constitution is subject to preserving the “kernel of its Jewish-democratic identity”, and that the constitutional data shows the existence of “recognition rules” that limit the Knesset’s power to abolish the kernel of the Jewish and democratic character of the State of Israel by means of first-order rules (Hasson, para. 4 of his opinion).

67.       Hasson held that the Knesset’s constituent power comes from the sovereign (the people) and passed from Knesset to Knesset to this day. Therefore, the possibility of establishing a constitutional provision that would tumble the building blocks of the state as Jewish and democratic “is not within the constituent power of the Knesset” (ibid., para. 24 of my opinion; and see: The Tal Law, 717). It was further held in Hasson that the limitations upon the constituent power apply both to the adoption of a new Basic Law and to the enactment of an amendment to an existing Basic Law. However, given the present stage of the Israeli constitutional project, these limitations are extremely narrow and concern “situations in which a Basic Law facially negates or contradicts ‘the “nuclear” characteristics that form the minimum definition’ of Israel as a Jewish and democratic state” (ibid., paras, 27 and 29 of my opinion; and also see: ibid., para. 4 of the opinion of Justice (emer.) Mazuz).

 

C.2. The Role of the Court

68.       Given the substantive limitations upon the Knesset in exercising its constituent power, the main question that remains to be decided is whether this Court should be granted the possibility of conducting judicial review in order to ensure that those limitations are indeed observed, and in order to intervene in those exceptional, rare instances in which the Knesset has deviated from them.

            As noted, this question was left undecided in Hasson, where the majority was of the opinion that Basic Law: The Nation does not negate the core characteristics of the State of Israel as a democratic state, and therefore, there was no need to determine the question of the Court’s jurisdiction to conduct substantive judicial review of Basic Laws.

69.       As noted in Hasson, establishing that the Knesset, as a constituent authority, is not “all powerful” and that it is subject to certain limitations does not, itself, necessarily lead to the conclusion that a deviation by the Knesset from its power in this regard will constitute grounds for judicial review (ibid., para. 32 of my opinion). Thus, for example, art. 89 of the French Constitution comprises an eternity clause according to which: “The republican form of government shall not be the object of any amendment”. However, the French Conseil Constitutionnel ruled that it does not have jurisdiction to conduct judicial review of constitutional amendments (CC decision No. 2003-469 DC, Mar. 26, 2003, Rec. 293). In such countries, the limitations upon amending the constitution are non-enforceable. Their influence is only in internalizing the rules of the constitutional game by the elements involved in establishing the constitutional norms, and if such rules be breached – the public can make its voice heard on election day (Hasson, para. 33 of my opinion; see in this regard: European Commission for Democracy through Law (Venice Commission), Report of Constitutional Amendment 44 (2010)). As opposed to that, as noted above, in no insignificant number of states, the constitutional courts have established their authority to review constitutional amendments and void them if the amendment violates the express limitations in the constitution (e.g., Germany) or implied constitutional limitations (e.g., India), even without that power being expressly set out in the constitutional text. In those systems, the court’s role is to ensure that the limitations upon amending the constitution will not remain purely declarative, and in cases in which the boundaries of the amending power are “breached”, it will be possible to protect that unchangeable constitutional core in practice.

70.       In Israel, the Basic Laws do not expressly refer to the question of jurisdiction to conduct substantive judicial review of the Basic Laws. Likewise, the constitution-in-formation does not comprise an eternity clause or a complete “basic structure” that can be pointed to at present, which makes it difficult to adopt a comprehensive unconstitutional constitutional amendment doctrine. However, even at this stage of the constitutional project, we can state that “‘Jewish and democratic’ are the Jachin and Boaz [I Kings 7:21 – trans.], the central pillars of the State of Israel” (Hasson, para. 1, per Justice I. Amit), and that suffices to establish a limitation – albeit narrow – upon the constituent power of the Knesset. Against this background, Justice Vogelman noted in Hasson that he tended to the approach that the authority to conduct judicial review “derives from the substantive limitations upon the power of the constituent authority. This, in order that those limitations not be rendered a dead letter” (ibid., para. 4 of his opinion; see and compare: ibid., para 4, per Justice Hendel; Academic Center, para. 35, per Deputy President (emer.) Rubinstein).

71.       I will begin hysteron proteron by saying that I am also of the opinion that in those rare cases in which the Knesset deviated from the boundaries of its constituent power, the Supreme Court sitting as High Court of Justice possesses the authority – and is even required – to declare that we are not concerned with a valid constitutional norm. As I will explain below, this conclusion derives directly from the unique characteristics of our constitutional structure and from the manner of exercising constituent power, which distinguishes our system from other legal systems and leads to the conclusion that the limitations upon the Knesset’s constituent power cannot be left unenforceable.

The Uniqueness of the Constitution-in-Formation “Israel style”

72.       The uniqueness of the Israeli constitutional project is expressed in three primary aspects: (1) the fact that it is built in stages, “chapter by chapter” over the course of decades; (2) the absence of a special procedure for adopting constitutional norms; (3) the exceptional control of the political majority – the Government, in particular – over the exercise of constituent power.

            Below, I will briefly address each of these aspects.

 

1. “Chapter by Chapter”

73.       As opposed to the constitutions of other countries that were adopted upon the establishment of the state or pursuant to a revolution, war or other extreme change in national life, in Israel, upon the adoption of the Harari Decision and the dissolution of the constituent assembly (the First Knesset) without the adoption of a constitution, “the opportunity for adopting a constitution at the ‘revolutionary moment’ of the establishment of the state was lost” (Rubinstein & Medina, 76). The “Israel-style” constitution was, therefore, not completed in a single process and it is still being crafted “chapter by chapter” (Bar-On, 297-299; Academic Center, para 15, per Justice Vogelman). As a result, elements generally present in constitutions throughout the world have not yet been established in the Basic Laws, including some of the basic rights and the manner of amending the constitutional text (Basic Law: Legislation) (Bar-On, 297; Rivka Weill, “Shouldn't We Seek the People's Consent? On the Nexus between the Procedures of Adoption and Amendment of Israel’s Constitution,” 10 Mishpat Umimshal 449, 450 (2007) [Hebrew]). In addition, we are concerned with a process spread out over a long period, which has no counterpart in the constitutional history of other states, and that has no discernable end point (Mizrahi, 402). As a result, Israel finds itself in the unusual situation in which there is no single constituent assembly, and in practice, there have, at present, been 25 constituent assemblies whose members have changed every few years (or months) in accordance with the results of the Knesset elections. From a comparative perspective, as noted in the literature, “there is no example to be found of such a strange constituent assembly – all the known examples are of constituent assemblies elected specifically for that purpose, that addressed the adoption of a constitution over the course of a few months or years, and that then dispersed” (Iddo Porat, “Constitutional Politics and Regular Politics – The Nation Law, The Constituent Power Doctrine, and Constitutional Dualism,” 20 Democratic Culture 217, 246 (2021) [Hebrew] (hereinafter: Porat, “Constitutional Politics”)).

74.       Indeed, the fact that the Israeli constitution has not yet been completed justifies refraining from adopting a comprehensive doctrine of unconstitutional constitutional amendment. However, prolonging the completion of the constitutional project and its continuation over the course of decades increase the fear of the possible weakening of the founding narrative that defines our existence and that stood at the basis of the establishment of the state, and perhaps, Heaven forbid, even disengagement from it. Moreover, the view that there is no possibility for judicial review of the content of Basic Laws until the completion of the constitution serves as a negative incentive for the Knesset to continue to delay the adoption of a constitution (Hasson, para. 2, per Justice. A. Baron). The words of Justice G. Karra, in his dissent in Hasson, are apt in this regard:

If the argument of waiting for the completion of the constitutional project is accepted, then, under the aegis of the absence of arrangements for conducting judicial review, and despite the fact that the “project of adopting a constitution” has not yet ended even after over 70 years since the establishment of the state – the constituent authority will be found “immunizing” itself, de facto, from judicial review. Thus, on the face of it, it has the unbridled, unlimited ability to establish Basic Laws however it may see fit, including Basic Laws that materially violate fundamental democratic values. Such a “normative vacuum” cannot be tolerated (ibid., para. 9 of his opinion).

 

2. The Absence of a Special Procedure for adopting Constitutional Norms

75.       Another characteristic that sets the Israeli constitutional project apart in comparison to other constitutions around the world is the fact that there is no real difference between the procedure for adopting a Basic Law and the procedure for enacting “regular” laws. The procedure for enacting Basic Laws is set out in the Knesset Rules of Procedure, and new Basic Laws can be adopted by a simple majority of those present in the chamber (see: Bar-On, 298). The same is true for amending an existing Basic Law. This is the case except in regard to entrenched Basic Laws, like Basic Law: The Knesset, which can only be amended by a majority of 61 members of Knesset in each reading. But in the normal course of events, that is the majority enjoyed by every coalition. In addition, there are a few provisions that can only be amended by a majority of 80 members of Knesset (secs. 9A(a), 44, and 45 of Basic Law: The Knesset, treating of postponing elections and suspension by means of emergency regulations; and secs. 6-7 of Basic Law: Jerusalem the Capital of Israel in regard to transferring part of the city to a foreign entity).

            Against this background, “the unbearable lightness of enacting and amending Basic Laws” has been emphasized on more than one occasion (Ariel Bendor, “Defects in the Enactment of Basic Laws,” 2 Mishpat Umimshal 443, 444 (1994) [Hebrew]; and see: Mizrahi Bank, 302; Hasson, para. 5, per Justice (emer.) Mazuz).  This Court has repeatedly called for the adoption of Basic Law: Legislation, which would establish a special, fixed legislative procedure that would distinguish adopting Basic Laws and their amendment from the process of enacting “regular” laws. Unfortunately, the adoption of this Basic Law remains in abeyance (Hasson, para. 91 of my opinion; and also see: Bar-On, 313; Shafir, para 3, per Justice Amit).

76.       The simple procedure by which constitutional norms can be adopted in Israel is markedly exceptional in relation to other states. A comparative survey recently conducted at the request of the legal advisor to the Constitution Committee examined the arrangements for amending constitutions in 22 western democracies (Gabriel Bukobza, “Arrangements for Amending Constitutions” (Knesset Research and Information Center, 2023)). All of the countries surveyed have a special, rigorous procedure for amending the constitution, which comprises at least one (and usually more) of the following mechanisms: ratification by two houses of the parliament; ratification of the amendment by a special majority (e.g., three-fifths or two-thirds); ratification of the amendment both by the federal legislature and by the states of the federation; ratification of the amendment only after elections for the parliament; ratification of the amendment by plebiscite. It would not be superfluous to note that the procedure for adopting a new constitution is generally “more burdensome than regular legislative process and separate from it” (Porat, “Constitutional Politics,” 227).  Thus, “in many countries, there are different procedures for amending the constitution, but there is no country that has a model similar to that of Israel, in which a constitutional amendment – i.e., the enactment of a new Basic Law or the amendment of an existing Basic Law – can be enacted by the regular legislative process, by a majority, in a single legislative house” (Amir Fuchs & Mordechai Kremnitzer, Distribution of Power, Not Separation of Branches: Preventing the Concentration of Political Power in Israel, 65 (Policy Paper 133, Israeli Democracy Institute, 2019) [Hebrew] (hereinafter: Distribution of Power)).

77.       In this regard, we should emphasize that there are significant reasons for maintaining a distinction between the enactment of regular laws – which, by there nature, are designed in accordance with the rules of “day-to-day politics” and expressed in a decision of a simple majority – and “constitutional politics” by which constitutional norms are adopted in a lengthy, deliberative, consensual process (Porat, “Constitutional Politics,” 218; Yoav Dotan, “A Constitution for Israel? The Constitutional Dialogue after the Constitutional Revolution,” 28 Mishpatim 149, 162 (1996) [Hebrew]; William Partlett & Zim Nwokora, “The Foundations of Democratic Dualism: Why Constitutional Politics and Ordinary Politics are Different,” 26 Constellations 177 (2019). Special, rigorous procedures for adopting and amending a constitution help prevent “constitutional grabs” by a “narrow” majority, ensure the stability of the most substantial arrangements of the political and legal system, require balancing and compromises among different sectors of the state, and grant the constitutional text broad legitimacy (Hasson, para. 2, per Justice Karra; Porat, “Constitutional Politics,” 230-236).

78.       Inherently, the more rigorous and burdensome the process required for amending the constitution, the weaker the justification for substantive judicial review of constitutional norms. This is so because meeting the complex requirements for amending the constitution is itself “a guarantee of a significant debate upon the content of the amendment and its appropriateness to the system” (Hasson, para. 12, per Justice Barak-Erez). For example, in the United States – where the Supreme Court refrains from conducting judicial review of constitutional amendments (see: Coleman v. Miller, 307 U.S. 433 (1939)) – a proposal to amend the Constitution will be adopted subject to its approval by two-thirds of each of the houses of Congress and ratification by three-quarters of the states. These are very rigorous demands, and it comes as no surprise that the last amendment to the Constitution (the 27th Amendment) was ratified over 30 years ago.

            As opposed to this, the Israeli system is a clear edge case in which the simple procedure for adopting constitutional norms grants a chance majority the possibility of fundamentally changing the state’s constitutional structure and the national identity quickly and easily (see and compare: Bar-On, 313; Academic Center, para. 102, per Deputy President Melcer, who was in the minority in regard to the result). Therefore, in Israel, there is justification for conducting substantive judicial review of Basic Laws in the absence of any of the other guarantees provided by a rigorous process like those found in other countries for adopting constitutional norms.

 

3. Control of the Exercise of Constituent Power by the Political Majority

79.       As noted, our constitutional history has led to a situation in which the same body – the Israeli Knesset – exclusively holds both the legislative and the constituent powers. In other words, the same members of Knesset who are elected in parliamentary elections in accordance with their party affiliation are entrusted with enacting both “regular” laws and Basic Laws. Alongside that, the Israeli regime structure grants the government significant influence over legislation by means of such mechanisms as party discipline and the Ministerial Committee for Legislation (Matan Gutman, “The Coalition State: ‘Rubber Stamp” or “Cheerleading Squad’,” Salim Joubran Book 197 (Aharon Barak et al., eds, 2023) [Hebrew] (hereinafter: Gutman)). One might have expected that these mechanisms would be reserved for proceedings concerning the Knesset’s role as a legislative authority, as MK Yizhar Harari (for whom the Harari Decision was named) well expressed in his comments to the Knesset plenum in the debate on Basic Law: The President:

[…] in the matter of the constitution and the chapters of the constitution, there is a complete blurring between the present interests of the factions in supporting or opposing the government, and it would be well if, in general, the members of the Knesset would vote with complete freedom, because the constitution that we are adopting is not for this Knesset or this government, but rather for a period that I hope will be at least like that of the Constitution of the United States (Knesset Record, June 9, 1963, 2031).

            However, the reality is that this hope expressed by MK Harari was not realized. In practice, coalition discipline became an integral, inseparable part of our parliamentary system, which is also expressed in the proceedings for adopting Basic Laws (Amnon Rubinstein and Yuval Geva, “The use of Political Discipline in adopting Basic Laws” (ICON-S-IL Blog (March 25, 2020) [Hebrew] (hereinafter: Rubinstein & Geva)). The combination of the institutional identity of the Knesset as a legislature and as a constituent authority and the Government’s dominance in the legislative process lead to the Government holding “power (that it uses frequently) to create constitutional amendments and thereby change the Basic Laws, and with them, the rules of the game” (Distribution of Power, 66). Expressions of the political majority’s effective control over the adoption of Basic Laws can be found, inter alia, in the establishing of special “ad hoc” committees to consider proposals for Basic Laws instead of the permanent committees (see, for example, the joint committee established for the purpose of enacting Basic Law: The Nation; Hasson, para. 2 of my opinion), and in the signing of coalition agreements and specific undertakings to support initiatives for the adoption of Basic Laws, while denying Knesset members the possibility of forming an independent opinion on the matter (see: Ittai Bar-Siman-Tov, “The Law of Lawmaking,” 37 Iyunei Mishpat 645, 696 (20160 [Hebrew] (hereinafter: “Law of Lawmaking”)).

80.       Israel’s institutional structure thus increases the fear that long-term planning may be tainted by short-term political interests in a manner that may lead to very serious harm to the constitutional order (the Rotation Government case, para. 103, per Deputy President (emer.) Melcer). Thus, the political majority’s extraordinary control of the legislative process also adds to the need for judicial review of the content of Basic Laws (see and compare: Hasson, para. 2, per Justice Baron; Roznai, 219).

81.       The three structural aspects described above – adopting a constitution “chapter by chapter”, the absence of a special procedure for adopting constitutional norms, and the control of the exercise of constituent power by the political majority – and all the more so when taken cumulatively, make our constitutional system unusual by any standard. In this situation, leaving the limitations upon the Knesset’s power unenforceable and not subject to any possibility for the court to examine whether the Knesset exceeded its autority – even in extreme cases – presents a very serious problem. Justice (emer.) Mazuz emphasized this in Hasson, noting:

[…] the absence of a complete constitution, and the existence of an anomalous situation in which Israeli constitutional norms are, in practice, enacted by the regular legislative process, in the absence of institutional and procedural separation between legislating constitutional provisions and regular laws, and not in a rigorous, unique procedure for enacting a constitution or constitutional amendments as is usual in regard to constitutions throughout the world, gives rise to the need and importance of there being limitations upon the exercise of the constituent power and in conducting judicial review specifically at this stage (ibid., para 5 of his opinion).

 

            The Exercise of Constituent Power in Practice

82.       The problematic practice that has developed over the last few years for the adoption of Basic Laws also reinforces the need for substantive judicial review of Basic Laws.

            First, over the years we see a change in the conception of the role of the members of the Knesset in adopting chapters in our developing constitution. Thus, the process for adopting the first Basic Law – Basic Law: The Knesset – took a number of years, and the Basic Law was ultimately approved by a majority of 96 with none opposed. The Basic Laws addressing human rights – Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation – were, indeed, approved by a smaller majority and without opposition, but their adoption was preceded by a process that took several years. It began with the preparation of a government bill prepared by the Ministry of Justice and addressed in many meetings of the Government, and concluded with private member’s bills based upon that Government bill, which were supported by Knesset members of the coalition and the opposition factions as one (for a detailed discussion, see: Amnon Rubinstein, “The Knesset and the Basic Laws on Human Rights,” 5 Mishpat Umimshal 399 (2000) [Hebrew]; Uriel Lynn and Shlomi Loya, How the Israeli Political System was Changed: 1990-2020, 57-82 (2022) [Hebrew] (hereinafter: Lynn & Loya)). The then chair of the Constitution Committee, MK Uriel Lynn of the Likud faction, emphasized at the time of the approval of Basic Law: Human Dignity and Liberty in the second and third reading that: “This law was prepared with the understanding that we must create broad consensus of all the factions of the house. We were aware that we cannot adopt a Basic Law that anchors the values of the State of Israel as a Jewish and democratic state if we do not achieve a broad consensus of all the factions of the house” (Knesset Record, March 17, 1992, 3782). Two years later, a new version of Basic Law: Freedom of Occupation was approved along with an indirect amendment of Basic Law: Human Dignity and Liberty by a large majority of the Knesset (for a detailed discussion, see: Lynn & Loya, 82-83); Amichai Cohen, The Constitutional Revolution and Counter-Revolution 102-103 (2020) [Hebrew]). As opposed to that, the new Basic Laws approved over the last decade were adopted on the basis of the votes of the members of the coalition factions alone, while imposing the mechanism of coalition discipline (see: Constitutional Law, 696; Porat, “Constitutional Politics,” 252-253; Rubinstein & Geva). This would seem to accurately reflect the different times and the fact that over the last years, the task of adopting a constitution is no longer conceived as a joint national project but rather as an additional source of power in the hands of the chance political majority in the Knesset.

83.       Second, recent research has noted that since the adoption of the first Basic Law (Basic Law: The Knesset in 1958) and until January 2023, 139 changes have been made in the Basic Laws (see: Elad Gil, “Changing the Rules of the Game during the Game – An Israeli ‘Pathology’,” (Tachlit –Institute for Israeli Public Policy (Jan. 18, 2023) [Hebrew]). According to that research, that is the highest rate of constitutional change in the world by a large margin. For the sake of comparison, the Constitution of the United States has been amended 27 times, of them only 8 constitutional amendments in the last hundred years. If that were not enough, in the last eight years, the number of changes to the Israeli Basic Laws (an average of 4.75 changes per year) doubled in comparison to the number of changes (an average of 2.15 changes per year) over the decades since 1958. The research further found that 62% of the changes made to Basic Laws concerned Basic Law: The Knesset and Basic Law: The Government – in other words, the overwhelming majority of the rules that were changed directly concerned the authority of the members of the Knesset and the Government themselves, and over the last few years, a significant part of those regime changes were adopted immediately after the Knesset elections and prior to the formation of the Government (see, inter alia, the amendments addressed in the Rotation Government case and in Scheinfeld). In fact, as the above research also shows, over the last few years, the process of forming a Government is systematically accompanied by changes in the rules of the game in favor of the incoming Government. In this regard, I only recently noted in Scheinfeld that “it is hard not to see Amendment no. 11 to the Basic Law as a high point, or more accurately, a low point of that worrisome phenomenon that I noted in the Rotation Government case, in which members of the Knesset exploit the ease by which it is possible to amend the Basic Laws for specific political needs” (ibid., para. 43 of my opinion).

            Until now, this phenomenon of trivializing the Basic Laws was mentioned primarily in the context of the unconstitutional constitutional amendment doctrine, which examines, inter alia, whether a constitutional norm is actually a personal norm intended to serve a specific government or Knesset. Nevertheless, this phenomenon also illustrates the danger posed by leaving the limitations upon the constituent power as limitations “on paper” alone. Indeed, in view of the gaps that make it possible to change constitutional norms with such great ease, and the increasing willingness of the political majority to exploit those gaps, there would appear to be a problem in relying upon the self-restraint of the Knesset as the only check upon violating the core characteristics of the State of Israel as Jewish and democratic (see and compare: Roznai, 182).

84.       The Knesset noted in its Affidavit in Response that “[…] if, Heaven forbid, the Knesset were to adopt Basic Laws that would strike a mortal blow to the pride and joy of Israel’s democracy, it can be expected that the sovereign – the people – would lawfully protest and replace its members on election day” (para. 353 of the Affidavit in Response). In view of the core principles in the balance – the Jewish character and the democratic foundations of the state – I believe that this argument understates the severity of the danger presented by situations in which the Knesset deviates from its constituent power. I do not believe that waiting for “election day” (normally, every four years) provides a sufficient response to a situation in which a political majority decides to exploit the (easily exploited) opportunity to fundamentally change the existing constitutional system. This is particularly so because the rules for conducting the elections themselves can also be changed easily (with the exception of the entrenched provision regarding the date for holding elections).

85.       Under these circumstances, there is a need for an apolitical institution that can serve as an “external brake” upon such extreme situations in which the Knesset might breach the boundaries of its constituent power. Therefore, as will be explained below, there would seem to be no alternative to recognizing the possibility of conducting judicial review by this Court, sitting as High Court of Justice, in order to ensure an effective response in such edge cases.

 

The Court as the Proper Institution for Overseeing the Boundaries of the Power of Constituent Authority

86.       In my opinion, the conclusion that this Court is the appropriate body for guarding against a breach of the boundaries of the Knesset’s constituent power derives from the nature of its function.

            The Court is entrusted with protecting the fundamental concepts and values of Israeli society, and it serves as “the principal tool for ensuring the existence and respect of the constitution” (Mizrahi Bank, 317; and see: Eliahu Mazza, “Judicial Responsibility,” in Eliahu Mazza Book 995, 997 (Aharon Barak et al., eds., 2015) [Hebrew]). I addressed the role of the Court in Hasson:

One of the primary functions of the Court is “protecting the Basic Laws that are at the core of our legal system” […] Therefore, it can be argued that alongside the Court’s judicial review of primary legislation and administrative actions in order to ensure that they not lead to severe harm to values and principles grounded in the Basic Laws, it must make sure that  the Basic Laws themselves not comprise provisions that might strike a mortal blow to the core of the entire constitutional system, while denying Israel’s character as a Jewish and democratic state […] (Hasson, para. 34 of my opinion; and see: ibid., para. 8, per Deputy President (emer.) Melcer).

            The Court’s role in protecting the constitutional project is of particular importance in view of the unique character of Israel’s constitutional-institutional system, which I addressed above (and see: Shafir, para. 32 of my opinion). In fulfilling that role, the Court is currently required to prevent unjustified harm to the Basic Laws caused by regular legislation and administrative decisions, to enforce procedural requirements and “rigid” provisions, and to identify provisions in Basic Laws that, in terms of their character, do not belong at the constitutional level and whose penetration into the constitution-in-the making would lead to the erosion and trivialization of the status of Basic Laws. Conducting judicial review in those rare cases in which the Knesset deviates from its constituent power and from the (narrow) limits upon it in adopting Basic Laws is, in my opinion, entirely consistent with the Court’s role as the defender of the constitutional project.

87.       We should further bear in mind that one of the primary roles of this Court is to ensure that all governmental agencies act within the bounds of their authority. To that end, the Court is granted, inter alia, the broad authority to grant relief “for the sake of justice” and to issue orders to all state authorities under secs. 15(c) and 15(d)(2) of Basic Law: The Judiciary (see: HCJ 971/99 Movement for Quality Government v. House Committee [56] 140, 164-165 (hereinafter: HCJ 971/99); and see: Yoav Dotan, Judicial Review of Administrative Action, vol. I, 97-99 (2022) [Hebrew] (hereinafter: Dotan, Judicial Review); Zamir, “Administrative Authority,” 1590).

            As has been made clear on more than one occasion, substantive judicial review over the products of the constituent authority is restricted to the question whether the constituent authority exceeded its authority. Thus, it the Tal Law case, it was noted that “there are grounds for the view that a law or Basic Law that would deny the character of Israel as a Jewish or democratic state is unconstitutional. The people, the sovereign, did not empower the Knesset to do that. It was authorized to act within the framework of the fundamental principles of the regime. It was not authorized to abolish them” (ibid., 717, emphasis added); and see: Mizrahi, 394). Bar-On similarly mentioned the possibility that the Court might be called upon “to decide whether the Knesset has overstepped its constituent authority and violated the basic foundations of the state as a Jewish and democratic state” (ibid., 312, emphasis added); Hasson, para. 29 of my opinion, para. 6 per Deputy President (emer.) Melcer, para. 13 per Justice (emer.) Mazuz). As noted, the legal issue of deviation from authority is given to the Court, and it can, therefore, be brought for its decision to the extent that it may arise – in extreme, extraordinary cases – in regard to the adoption of a Basic Law or its amendment.

88.       Lastly, it should be emphasized that in Israel there is no body other than the Court, which is not involved in enacting constitutional norms, that can act as an “external brake” upon breaching the boundaries of constituent power (compare: Aharon Barak, The Judge in a Democracy 109 (2004) [Hebrew]). Parenthetically, I would note that in other countries in which the limitations upon amending the constitution are enforceable, the body generally authorized to conduct the task of review is the court (see: Roznai, 201 and 209).

89.       The Government Respondents and the Knesset raised a number of problems concerning the recognition of this Court’s jurisdiction to conduct substantive judicial review of Basic Laws.

            According to the Government Respondents, recognition of the Court’s jurisdiction to conduct such judicial review would make Israel the only country in the world in which the Court “arrogates to itself authority to review constitutional amendments in the absence of an eternity clause, in the absence of a complete constitution, without being able to draw upon the basic structure of a nonexistent constitution” (para. 107 of the Affidavit in Response). This argument relies upon a comprehensive survey presented in their Affidavit in Response in regard to constitutional amendments in various countries. However, in my view, the question of judicial review of constitutional norms cannot be divorced from the constitutional environment in which they are adopted. In this regard, it is worth remembering that Israel is also the only country whose constitution remains in the process of creation for over seven decades, without any end date in sight; in which the political majority enjoys complete control over the adoption of the constitution-in-formation, and that has the power to approve constitutional norms in a very simple process that is identical to the process for approving regular legislation. Indeed, there is good reason for noting that “trying to learn from the experience of other constitutional systems in this regard is complex” (Hasson, para. 12, per Justice Barak-Erez).

90.       Another argument raised by the Knesset and the Government Respondents is that placing judicial review of Basic Laws in the hands of the Court – as a non-representative body – violates the principles of the sovereignty of the people. This argument cannot be accepted. Approving a Basic Law that would violate the core of the Jewish and democratic identity of the state does not express a realization of the sovereignty of the people but its opposite. It is a clear deviation from the limited power held by the Knesset when wearing the constituent authority hat that it was given in trust by the people (see and compare: Hasson, para. 5, per Deputy President (emer.) Melcer; Yaniv Roznai, “Radical Conservatism and the Unconstitutional Constitutional Amendment Doctrine,” ICON-S Essays: Essays in Public Law (2022) [Hebrew]). 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” (Mizrahi Bank, 399). Therefore, in exceptional circumstances in which the public’s elected representatives breach the people’s trust and deviate from their constituent power, the fact that the Court is not a representative body is not to its detriment in this regard. Its being an apolitical, independent body is what makes it the institution that the can provide an effective response in such edge cases (compare: Barak Medina, “Does Israel have a Constitution? On Formal and Liberal Democracy,” 44 Iyunei Mishpat 5, 29-30 (2021); Dotan, Judicial Review, 71).

91.       The Knesset and the Government Respondents further argue that judicial review of Basic Laws is incompatible with the holding in Mizrahi Bank that premised the authority to conduct judicial review of regular legislation upon the fact that Basic Laws are at the top of the normative pyramid. I find this argument perplexing. Mizrahi Bank focused upon the issue of the normative superiority of Basic Laws over regular legislation. But there is no necessary connection between the supreme status of one type of norm as opposed to a norm of a another type and the existence of limitations upon the power to create that superior norm (Barak, “Declaration of Independence,” 35). Indeed, the possibility of conducting judicial review in cases in which the Knesset might deviate from its constituent power was already mentioned in Mizrahi Bank, but resolving that issue was not required in that case (ibid., 394). In any case, to remove all doubts, we should make it clear that substantive judicial review of Basic Laws focuses upon maintaining the boundaries of the power of the constituent authority and does not rely upon the existence of any norms that stand above the Basic Laws in the normative hierarchy (compare: Hasson, para. 8, per Justice Sohlberg; and see: Alon Harel, “‘Jewish and Democratic’ – The Legal Justification for voiding Basic Laws,” Dyoma (Aug. 14, 2023) https://dyoma.co.il/law/1972).

            Another argument concerning Mizrahi Bank is that the unique structural characteristics of our constitutional system – like the ease in enacting Basic Laws – were already known, and nevertheless, they were given superior normative status, whereas now, those characteristics serve as a justification for conducting judicial review over the Basic Laws themselves. Indeed, no one disputes that the possibility of adopting and changing Basic Laws by a simple procedure is not ideal in a constitutional democracy. There have even been those of the opinion that this can justify, to some degree or other, denying their superior normative status (see, e.g.: Porat, “Constitutional Politics,” 222; and also see: Ruth Gavison, “The Constitutional Revolution – Reality or Self-Fulfilling Prophecy,” 28 Mishpatim 21 (1997) [Hebrew]). I consider this a far-reaching conclusion. It is possible to recognize that there are flaws in our constitutional system without relinquishing the important advantages that inhere in the existence of supreme constitutional norms that define the character of the state, express the “agreement upon the shared rules of the game”, ensure that all the actions of the governmental agencies will conform with them, serve as a source for interpreting all the legal norms, and that embody an important educational value for the entire nation” (Rubinstein & Medina, 54-55; and see: HCJ 1384/98 Avni v. Prime Minister [57] 210). On the contrary, recognizing the possibility of granting relief in those exceptional cases in which our system’s structural flaws may be exploited in a manner that might yield a destructive result defends the continued existence of the Israeli constitutional process.

92.       The Knesset and the Government Respondents further argue that the Court does not have the jurisdiction to perform judicial over Basic Laws because its authority derives from a norm of the same status, i.e., Basic Law: The Judiciary. This argument does, indeed, raise a theoretical problem of some significance, and I accept that the “constitutionality” of Basic Laws cannot be reviewed in accordance with the tests set out in the limitation clause by which the constitutionality of regular laws is examined (see: Ben Meir, para. 20 of my opinion; HCJ 1368/94 Porat v. State of Israel [58] (hereinafter: Porat)). A possible conflict between one Basic Law and another also does not, itself, constitute grounds for judicial intervention (Hasson, para. 49 of my opinion). Indeed, as long as we are concerned with a valid constitutional norm, and as long as the constituent authority acts within the boundaries of its authority, its actions are not subject to judicial review. This is the case in view of the fact that Basic Laws are to be “found at the apex of the positive normative hierarchy” (Hasson, para. 32 of my opinion).

            However, in those situations in which a Basic Law or an amendment to a Basic Law was adopted through a clear deviation from the boundaries of the Knesset’s constituent power, no valid constitutional norm was actually created. In other words, alongside the other conditions examined to date, among them the procedural requirements like changing a Basic Law by a particular majority in accordance with the “rigidity” clause (see and compare: Porat; Ben Meir, para. 10, per Justice Mazuz), and identifying a norm as one that is, indeed, on the constitutional level (in accordance with the abuse of constituent power doctrine) – it must be ascertained that the constituent authority acted with authority when it adopted it. If the constituent authority exceeded  its powers, the Court’s jurisdiction to conduct judicial review relies upon the fact that no valid constitutional norm was created that can be recognized as superior to other norms.

93.       Lastly, the Government Respondents point out that there is no place for permitting judicial review over Basic Laws inasmuch as if the constituent authority is intent upon destroying the democratic regime, a judgment of this Court will not prevent it from doing so. In this regard, they note that “a regime is not designed and authorities are not established on the basis of horror scenarios” (para. 279 of the Government Respondents’ Affidavit in Response).

            I take a different view. In my opinion, the need to forestall extreme scenarios is the basis for many constitutional arrangements, and in this regard, I need only turn to what was already decided in this regard in the 1980s: “[…] constitutional norms cannot be built on hopes. Basic principles of government are not shaped on the assumption that all will proceed as planned. Quite the contrary. The entire constitutional edifice is testimony to the realization that checks and balances must be provided” (HCJ 428/86 Barzilai v. Government [59] 606). Moreover, the Government Respondents’ argument ignores the possibility that the severe harm to the state’s democratic core might be carried out in stages, and that judicial review may aid in putting a stop to the democratic decline before the total collapse of the system (see: Rosalind Dixon & David Landau, “Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment,” 13 Int’l J. Const. L. 606, 636 (2015)).

94.       Thus, having recognized that the constituent authority is not unrestricted and may exceed its authority, the problems raised by the Government Respondents and the Knesset do not, in my view, negate the need for judicial review to examine whether the Knesset deviated from its constituent power. This review is necessary given the unique structural characteristics of Israel’s constitutional project and the extremely problematic practice that has taken root in our system in all that relates to exercising constituent power. It is also consistent with the nature of the Court’s function and with it being the most appropriate (in fact, the only) body for carrying out such review.

            Therefore, I am of the opinion that in those extreme cases in which the Knesset adopts or changes a Basic Law such that it presents an element that facially denies or contradicts the core characteristics of Israel as a Jewish and democratic state, this Court’s authority to decide that the Knesset deviated from its constituent power and that the constitutional norm is invalid must be recognized.

95.       It is important to emphasize that the possibility of conducting substantive judicial review of Basic Laws is very exceptional. It derives from the Israel’s unique governance regime, and therefore, the Court must exercise it with maximum restraint and “take great care in order to prevent slipping into a ‘routine’ of petitions challenging Basic Laws or provisions in Basic Laws on the claim of deviation from constituent power” (Hasson, para. 13, per Justice (emer.) Mazuz).

            It is also important to emphasize that my conclusions in regard to the question of judicial review of the Knesset’s constituent power rely upon the existing constitutional situation. As has already been clarified in the case law of this Court: “The legitimacy of judicial review is tied, at least in part, to the process that led to the constitutional amendment. In other words, the more complex, inclusive, and comprehensive the work of the constituent authority, the greater the democratic legitimacy that will be ascribed to its results, and accordingly, the appropriateness of judicial review will decrease” (ibid., para. 2, per Justice Baron; Roznai, 219-220). Therefore, if a rigorous, dedicated process for adopting and amending Basic Laws is established in the future, it will be appropriate to reexamine the issue of judicial review in regard to Basic Laws adopted through that process. However, as long as that is not the constitutional reality, I am of the opinion that this Court’s jurisdiction to intervene in those extreme cases in which the Knesset exceeds its powers as a constituent authority should be recognized.

 

4. Interim Summary

96.       The constitutional history of the State of Israel is exceptional and unusual. The promise to establish a constitution for the state – a promise expressly included in the Declaration of Independence – has not yet been realized even after more than 75 years. Instead, the Knesset decided to create our constitution “chapter by chapter” by means of enacting Basic Laws. In Mizrahi Bank, the Court affirmed that these Basic Laws are constitutional norms that stand at the apex of the normative pyramid. However, in that same matter, two questions were left undecided – one relating to a situation in which the Knesset may abuse the title “Basic Law”, and the second concerning a situation in which the Knesset might exceed its constituent power.

            Over the last few years, against the background of the improper trend of changing Basic Laws at a dizzying pace at the initiative of the political majority in the Knesset, the Court has been forced to address these questions. In regard to the first question, the Court employed the abuse of constituent power doctrine to examine whether arrangements established in a Basic Law were properly established at the constitutional level in terms of their formal-procedural characteristics. As for the second question, concerning the content of basic legislation, Hasson first made it clear that the power of the constituent authority is not unlimited, and that it is not authorized to facially deny or negate the core characteristics of the State of Israel as a Jewish and democratic state. Today, we must take another step and hold that in rare cases in which “the beating heart of the ‘Israel-style’ constitution” is harmed (Hasson, para. 18 of my opinion), this Court may declare that a Basic Law that reflects a deviation from the Knesset’s constituent power is void. This is the case in view of the unique structural characteristics of the Israeli constitutional system, and given the constitutional practice over the last years that demonstrates the ease by which our system can be changed fundamentally.

 

Part Two: Amendment no. 3 to Basic Law: The Judiciary

97.       Amendment no. 3 to Basic Law: The Judiciary, which is the focus of the petitions at bar, blocks any possibility of holding a judicial hearing or of issuing judicial orders in regard to the reasonableness of decisions by the Government, the Prime Minister, and the government ministers. The petitioners, as noted, pointed to three serious defects that they believe require the voiding of the Amendment. The first defect – which was the focus of the hearing on Sept. 12, 2023 – concerns the content of the arrangement. In this regard, it is argued that the Amendment inflicts very serious harm upon the core characteristics of Israel as a democratic state, and that the Knesset deviated from its constituent power in enacting it. The second defect focuses upon the formal characteristics of the arrangement. In this regard, the Petitioners argue that the arrangement established by the Amendment does not bear the hallmarks of a constitutional norm. Therefore, enacting it constituted an abuse of constituent power. The third defect concerns a list of serious defects that the Petitioners claim occurred in the process of adopting the Amendment.

I will begin hysteron proteron in saying that in Israel’s current constitutional situation, the amendment that is the subject of the petitions, which comprehensively abolishes judicial review of the reasonableness of all the decisions at the elected echelon, indeed inflicts severe harm to the principle of separation of powers and the principle of the rule of law. This severe harm to two of the clearest characteristics of the State of Israel as a democratic state can have significant, unprecedented influence upon the individual and upon the public as a whole. I am, therefore, of the opinion that there is no recourse but to hold that in adopting Amendment no. 3. The Knesset deviated from its constituent power and the Amendment must be declared void. In view of this conclusion, I will primarily address the reasons that ground it, and suffice with a few comments upon the other two defects raised by the Petitioners.

1. Threshold argument: The ripeness of the petitions

98.       The Knesset is of the opinion that the petitions should be dismissed in limine because, in its view, the factual and legal foundation required for deciding upon the issues raised by the petitions has not yet crystallized. In this regard, it is argued that the consequences of the Amendment are not yet entirely clear and largely depend upon the manner in which the Amendment will be interpreted by the courts, its influence upon the operation of the Government and its ministers, and upon the Knesset’s ability to impose the duty of reasonableness upon the elected echelon. Under these circumstances, the Knesset argues, “it would be inappropriate to use the ‘doomsday weapon’ of voiding a Basic Law on the basis of doubts and speculations” (para. 358 of the Affidavit in Response).

99.       The ripeness doctrine, adopted by our legal system over the last few years, reflects the fundamental conception of restraint and caution that the Court exercises in conducting judicial review (Ben Meir, para. 3, per Justice Mazuz). This doctrine serves the Court as a tool for controlling and regulating the constitutional issues that need to be addressed and decided, and it concerns an evaluation of the point in time when it would be proper for the Court to examine a given issue (ibid.; HCJ 2311/11 Sabah v. Knesset [60] para. 12, per President Grunis (hereinafter: Sabah)). It is intended “to spare the Court from the need to address matters that are not yet ripe for a judicial decision because their claimed harm is purely speculative and may never come to pass” (HCJ 3803/11 Association of Capital Market Trustees v. State of Israel [61] para. 15. per Deputy President E. Rivlin; and see: HCJ 3429/11 Alumni Association v. Minister of Finance [62] para. 28, per Justice M. Naor).

100.     Typically, the question of a petition’s ripeness arises in situations in which the challenged legislation has not yet been implemented in practice. However, it has already been held that a lack of implementation is not itself sufficient to show that a particular petition is not ripe for deciding (see: Sabah, para. 15, per President Grunis; HCJ 1308/17 Silwad Municipality v. Knesset [63], para. 35 of my opinion). Thus, for example, it has been held that a petition is ripe for decision when the constitutional question that it raises is primarily legal and the response to it does not require a detailed factual situation or concrete implementation (Ben Meir, paras. 8-9 of my opinion; and see: HCJ 3166/14 Gutman v. Attorney General [64] para. 43, per President Grunis). It was further held that in deciding upon the ripeness of a petition, the Court must weigh the public interest in addressing it and consider the consequences of postponing the judicial decision upon the harm to the rule of law and legal certainty (Sabah, para. 16, per President Grunis).

101.     In my opinion, application of the ripeness doctrine is inappropriate in the case at bar. The questions raised by these petitions are purely legal questions that concern, inter alia, the extent of the Amendment’s harm to the core of the constitutional project and to the Knesset’s observance of the limitations upon it when wearing its constituent authority hat. The aspects necessary for deciding these questions were presented to us, and I do not think that a future factual development would materially contribute to deciding upon the petitions. In this sense, one can say that we have before us a real, clear dispute and a concrete implementation of the Amendment is unnecessary for its crystallization (see and compare: Hasson, para. 12 of my opinion).

            The Knesset argues that if unreasonable decisions are made by the Government, the Prime Minister, or one of the ministers in the future and a petition is filed arguing that the decisions are unreasonable in the extreme, “it will be possible to examine the consequences of the amended Basic Law on the basis of a concrete factual foundation” (para. 298 of the Affidavit in Response). This argument is surprising inasmuch as the Amendment expressly forbids the courts, including this Court, “to address” the reasonableness of decisions by the Government and its ministers. That being the case, it is not clear how the courts might address petitions in such matters, should they be filed. Similarly, the Knesset’s argument that the petitions be dismissed because the ramifications of the Amendment for the Government’s conduct and the effectiveness of Knesset oversight have not yet become clear also raises a considerable problem. This is so, inter alia, because the Amendment already directly influences the relationship between the individual and the government and is relevant to many decisions made on a daily basis by the Government and its ministers. Indeed, as the Knesset itself points out, there are already pending proceedings that raise arguments concerning the reasonableness of decisions by the elected echelon (para. 274 of the Affidavit in Response).

102.     Under these circumstances and given the clear public interest in addressing the petitions on the merits, I am of the opinion that the Knesset’s claim of a lack of ripeness should be dismissed.

 

2. Examining the harm to the “core characteristics” of the State of Israel

103.     The Petitioners’ main argument – in which the Attorney General joins – is that the Amendment that is the subject of the petitions represents a deviation from the boundaries of the Knesset’s constituent power.

            The Knesset exceeds its constituent powers if it enacts a Basic Law or an amendment to a Basic Law that “denies or facially contradicts the ‘core characteristics’ that form the minimal definition of the State of Israel as a Jewish and democratic state” (Hasson, para. 29 of my opinion). The core characteristics of the State of Israel as a Jewish state as previously held in the case law are primarily – “the right of every  Jew to immigrate to the State of Israel, in which Jews will be a majority”; the Hebrew language as the country’s primary language; and the holidays, symbols and heritage of the Jewish people being part of the state’s identity (Tibi, 22). As for the democratic characteristics, reference is usually made to “recognition of the people’s sovereignty as expressed in free, equal elections; recognition of the core of human rights, among them dignity and equality, maintaining the separation of powers, the rule of law and an independent judiciary” (ibid., 23; and see: HCJ 1661/05 HCJ 1661/05 Gaza Coast Regional Council v. Knesset [65] 565, (hereinafter: Gaza Coast); HCJ 5026/04 Design 22 v. Rosenzweig [66] 53-54; EDA 1806/19                           Lieberman et al. v. Cassif et al. [67] para. 13 of my opinion (hereinafter: Cassif)).

            We are not concerned with a closed or comprehensive list, but to the extent that it is claimed that there are additional nuclear characteristics, they must reflect the core Jewish and democratic identity of the state at a level of importance similar to the characteristics noted above.

104.     The Hasson case addressed the question of how to examine the presence of harm to “the core characteristics” only in brief. That was the case inasmuch as in that matter there was no need to decide upon the Court’s jurisdiction to conduct substantive judicial review of Basic Laws.

            The matter before us requires that we decide that issue. Therefore, I will first address matters of principle raised by the parties in this regard.

105.     The Association and the other civil society organizations argued that Amendment no. 3 constitutes a deviation from constituent power in accordance with the standard established in Hasson. However, in their view, the reality of the Israeli regime requires establishing a lower bar for intervention in Basic Laws that would examine whether there was a disproportionate violation of a core principle of the constitution or of the Basic Law (paras. 251-260 of the Association’s Brief. This suggestion is based upon Roznai, 220-221).

            I cannot accept this suggested standard in regard to the Basic Laws. The very existence of judicial review of the contents of Basic Laws is no small matter. This review derives from Israel’s exceptional constitutional reality, as I noted (see paras. 72-83, above), and in my opinion, it is proper that it limit itself only to those edge cases in which a Basic Law will lead to unusual harm to the Jewish or democratic hallmarks of the state. I do not think that it would be proper in this regard to adopt tests materially similar to those that serve the judicial review of primary legislation and of administrative acts (see and compare: The Tal Law, 717; Ben Meir, para. 36 of my opinion).

106.     On the other hand, I am not of the opinion that the already high bar for intervention should be raised to the point that we will eviscerate the possibility of intervening in situations in which the Knesset exceeded its authority. In particular, and as opposed to the argument of the Knesset Legal Advisor in the hearing on Sept. 12, 2023, we emphasize that the question is not whether the Basic Law turns the State of Israel “into a state that is not democratic, i.e., a dictatorship” (p. 27 of the Transcript). The question that should be asked is whether the Basic Law or the amendment to the Basic Law causes harm to the core characteristics of the state that is so severe that it shakes the building blocks of our constitution-in-formation. To the extent that that is the case, the conclusion is that we are concerned with a Basic Law that exceeds the constituent power of the Knesset.

107.     Another argument raised by the Knesset in its Affidavit in Response is that judicial review of the content of basic legislation must be in accordance with the bar established in regard to disqualifying candidates and lists from participation in the elections, in accordance with sec. 7A of Basic Law: The Knesset (and compare: Weill, “Hybrid Constitution,” 566-567). In other words, according to the Knesset, intervention in a Basic Law is possible only if we are concerned with a constitutional change where supporting it would lead to the disqualification of a candidate or a list from standing for election. In my view, this approach compares apples with oranges. The tests established in regard to the grounds for disqualification in sec. 7A of Basic Law: The Knesset are all based upon the specific context of that section and in particular, upon the fact that disqualifying a candidate or list severely infringes the right to vote and to be elected, which is “the life breath of every democratic regime” (Cassif, paras. 3 and 12 of my opinion). The abuse of constituent power doctrine concerns an entirely different situation – it examines a completed constitutional product that was placed at the apex of the normative hierarchy and that affects the entire system. Establishing that such a provision in a Basic Law is invalid, in circumstances in which the Knesset exceeded its authority, is intended to remedy severe harm to the constitutional order, and it does not involve the a priori (sec. 7A of the Basic Law) or post facto (sec. 42A(3) disqualification of a person or list from the Knesset. That being the case, although, as in disqualifying candidates and lists, intervention in basic legislation should be reserved only for exceptional, rare cases, we must examine each of these issues in accordance with the standards relevant to the matter.

108.     Harm to the core characteristics can be in theory or in practice (see: Hasson, para. 30 of my opinion). In other words, there are two possible situations in which a deviation from constituent power may occur. One situation is that of a declaratory disengagement from the character of the state or from a specific core characteristic. For example, rejecting the definition of Israel as a Jewish state or rejecting the status of the Hebrew language. In cases such as these, even without examining the influence of the constitutional change in practice, it is clear that we are concerned with a change that facially contradicts the constituting narrative of the Israeli constitution, and it cannot be left in place without it leading to a fundamental change of the constitutional project.

109.     Harm in practice to the core characteristics of the state is a case of such a clear deviation from the Knesset’s constituent power that, should such a thing ever occur, grounds for the Court’s intervention would clearly arise. The cases in which the question might arise in regard to the Knesset’s exceeding its constituent power are primarily cases of actual harm to one of the core characteristics of the state. In such cases, we must seek out the effect of the constitutional change in terms of its result. This test cannot take place in a vacuum. In order to understand the nature and magnitude of the harm, we must examine, as a starting point, the existing constitutional system alongside the change in the Basic Law and decide whether, under the circumstances, any of the core characteristics of the state were negated or facially contradicted.

            We cannot rule out a situation in which a consecutive series of amendments to the Basic Laws will cumulatively lead to harm to the constitutional core (see and compare: Tom Ginsburg & Aziz Z. Huq, How to Save a Constitutional Democracy 90-95 (2018); David Landau, “Abusive Constitutionalism,” 47 UCLA L. Rev. 189 (2013)). However, particular care must be taken in this context, including in regard to the arguments raised by the Petitioners and the Attorney General that in the framework for examining the actual influence of an amendment to a Basic Law, weight should be given to other legislative initiatives that are “in the pipeline” but that have not yet been adopted. A fundamental principle that derives from the principle of separation of powers is that the Court does not examine bills before they have been approved and have made their way into the lawbook. This is so, inter alia, because it is not at all clear how they will be adopted in the end, if at all (see and compare: HCJ 1234/23 Arad v. Minister of Justice [68] para. 3; HCJ 1210/23 Oron v. Knesset Constitution, Law and Justice Committee [69] para. 3).

110.     In the matter before us, Amendment no. 3 to Basic Law: The Judiciary does not blatantly declare the abandonment of any particular core characteristic of our system. The severe harm pointed out by the Petitioners and the Attorney General is primarily focused upon the result. Therefore, we must examine the significance of the Amendment in practice, against the background of the existing constitutional situation in regard to those aspects addressed by the Amendment. I shall now proceed with that examination.

            C. The importance of judicial review of the Government’s actions

111.      The issue addressed by Amendment no. 3 is that of judicial review, or more precisely – the abolition of judicial review in all that concerns the reasonableness of decisions by the Government, the Prime Minister, and the ministers. As noted, in order to understand the significance and consequences of the Amendment, one must understand the broad constitutional context and the place of judicial review in our system. In the first part of this opinion, I noted the Government’s exceptional control over the proceedings for adopting Basic Laws. As will be explained below, this is but one aspect of the great, almost unlimited power concentrated in the hands of the ruling majority in Israel. Therefore, in the absence of an effective system of checks and balances, judicial review is, in fact, the only effective check upon that power.

112.     First, as already noted, in our parliamentary system the Government “controls” the Knesset in practice (Quintinsky, para. 39, per Justice Sohlberg). While the Government serves on the basis of the Knesset’s confidence, in practice, in the usual course of things, the Government enjoys an “automatic majority” in the Knesset, and it can be said that “in many ways, it is not the government that is the Knesset’s ‘executory agent’, but rather the Knesset is the government’s ‘legislative agent’” (Distribution of Power, 76). As already noted, this is expressed in the mechanisms of coalition discipline and the Ministerial Committee for Legislation, which lead to a situation in which, in effect, the Government – in particular the Prime Minister and the senior ministers (the “nucleus of control” of the coalition majority) – are the ones who decide the fate of bills in the Knesset (Gutman, 217; Amichai Cohen & Yaniv Roznai, “Populism and Israeli Constitutional Democracy,” 44 Iyunei Mishpat 87, 122-123 (hereinafter: Cohen & Roznai); and see: HCJ 2144/20 Movement for Quality Government v. Speaker of the Knesset [70] para. 11 of my opinion (hereinafter: Edelstein); Academic Center, para. 14, per Deputy President (emer.) Rubinstein). As noted, this Government control over legislative proceedings is also relevant to the enactment of Basic Laws, given the simple procedure required for their enactment or amendment, and this allows the Government to change the constitutional “rules of the game” as it sees fit.

            The institution of non-confidence, which is one of the Knesset’s primary tools for overseeing the Government, has also been significantly diminished over the years, and it now requires a vote of confidence in another Government by a majority vote of the Knesset (a system referred to as a “constructive vote of no confidence”; sec. 28 of Basic Law: The Government; for a detailed discussion, see: Rotation Government, paras. 4-5 of my opinion). This, while the Prime Minister, with the consent of the President, is granted the authority to dissolve the Knesset by means of an order (sec. 29(a) of Basic Law: The Government). This constitutes something of a challenge to the very principle that “the Government rules by virtue of [the confidence of] the Knesset and not the reverse” (Shimon Shetreet, The Government: The Executive Branch – Commentary on Basic Law: The Government 509 (Itzhak Zamir, ed., 2018) [Hebrew] (hereinafter: Shetreet).

            To this we should add additional aspects that strengthened the Government’s hold upon the Knesset over the last few years, first among them the lengthy tenure of transition governments that hold powers similar to those of a regular government, even though they do not act on the basis of the Knesset’s confidence (HCJ 6654/22 Kohelet Forum v. Prime Minister [72] para. 6 of my opinion (hereinafter: Kohelet Forum). We should also take note of the enactment of the “Norwegian Law”, which allows Members of Knesset who have been appointed as ministers or deputy ministers to resign from the Knesset such that they are replaced by the next in line on their list, but at the end of their tenure in the Government, they may return to serve in the Knesset in  place of the “replacement” Members of Knesset (sec. 42C of Basic Law: The Knesset; see: HCJ 4076/20 Shapira v. Knesset [73]). Thus, those “replacement” Members of Knesset may feel an excessive sense of obligation to the Government, knowing that their continued tenure depends upon its goodwill (Shetreet, 324-325). Over the last few years, the arrangement has been expanded in a manner that permits more ministers and deputy ministers to resign, and as of September 2023, more than a quarter of the Members of Knesset from the coalition replaced members of the Government who had resigned from the Knesset (para. 225 of the Attorney General’s affidavit).

            Against this background, it can be said that “the Government shook the Israeli system of government, almost completely eradicated the distribution of powers between the political branches, and at present, it effectively concentrates both executive and legislative power in its hands” (Gutman, 198).

113.     Despite the unprecedented power concentrated in the executive-legislative branch, which makes it a kind of “super branch”, there is almost no limitation upon that power. It is worth noting in this regard research that examined five mechanisms for the distribution of political power in 66 countries classified as “free countries’ by Freedom House: (1) separation of the legislature into two bodies or “houses”, (2) a presidential system that creates a clear separation between the legislature and the executive, (3) a federal system based upon a division of power between the central government and the “states” of the federation, (4) a regional system of elections that requires elected representatives to grant weight to “local” interests, (5) membership in international bodies like the European Union or regional human rights courts that influence the conduct of the state (see a summary of the research in Cohen & Roznai, 117-122; for a more detailed discussion, see Amichai Cohen, Checks and Balances: The Override Clause and Its Effect on the Three Branches of Government 14-23 [Hebrew] (hereinafter: Cohen, Checks and Balances). The research found that Israel is the only country that has none of those structural limitations upon the power of the political majority (Cohen & Roznai, 122). To that we should add the fact that Israel does not have an entrenched, stable constitution that provides significant protection from governmental power. Prof. Itzhak Zamir described this well:

[…] I doubt that there is another democratic country in the western world in which the Government enjoys as much power as the Government in Israel. As opposed to that power, the system of checks and balances that is accepted throughout the world as a vital system for preventing abuse of governmental power is more meagre and weaker than in other democracies (Zamir, Administrative Power, 3610).

114.     Under these circumstances, judicial review over the legislative and executive branches in Israel is the only effective mechanism that can serve to limit the centralized power of the majority in any real way (Cohen, Checks and Balances, 25; Distribution of Power, 64). There are, of course, gatekeepers and other oversight and control mechanisms in our system (see: Zamir, Administrative Power, 2319-2320), but judicial review is the most important mechanism in the state’s system of checks and balances (ibid., 101), and “without it, governmental discretion becomes unlimited, and nothing is more foreign to the democratic character of our system” (Gaza Coast, 756).

115.     The primary institution responsible for conducting judicial review in our system, particularly when Government and ministerial decisions are concerned, is the Supreme Court sitting as High Court of Justice (see: Daphne Barak-Erez, Administrative Law, vol. 4 – Procedural Administrative Law 49 (2017) [Hebrew] (hereinafter: Barak-Erez, Procedural Administrative Law)). This Court was given broad authority to grant relief for the sake of justice and to issue orders to all state authorities, which has its roots in the Mandatory period (art. 43 of the Palestine Order-in-Council, 1922-1947 (hereinafter: the Order-in-Council); sec. 7 of the Courts Ordinance, 1940), as well as in “regular” legislation (sec. 7 of the Courts Law, 5717-1957), and as noted, it is now anchored in the provisions of sec. 15 of Basic Law: The Judiciary, which grounded the status of the High Court of Justice as “a foundation stone of the system of checks and balances between the branches in Israel (Barak-Erez, Procedural Administrative Law, 51; and see: HCJ 971/99, 140).

116.     Given the fact that the system of checks and balances in Israel is ab initio weak and fragile, significant harm to the jurisdiction of the courts – and the High Court of Justice in particular – to conduct judicial review may bring about a facial contradiction in regard to at least two of the core characteristics of the State of Israel as a democratic state – the separation of powers and the rule of law, regarding which is has already been stated:

The rule of law cannot be maintained in the absence of judicial review […] Indeed, the effective existence of law requires effective judicial review. Without judicial review over the executive branch, the separation of powers is undermined. With it, human liberty is impaired and the foundations of a free regime are impaired (HCJ 294/89 National Insurance Institute v. Appeals Committee [74] 450 (hereinafter: National Insurance Institute) (emphasis added); compare: Zamir, Administrative Power, 98).

D.        The significance of the Amendment

117.     Having addressed the Israeli constitutional reality in which Amendment no. 3 to Basic Law: The Judiciary was adopted, I will now examine the Amendment itself.

            D.1.     Interpretation of the Amendment

118.     In order to provide a complete picture, I will present the full text of sec. 15 of Basic Law: The Judiciary, to which the amending provision was added in sec. 15(d1):

                        The Supreme Court

                        15. (a) The seat of the Supreme Court is Jerusalem.   

(b) The Supreme Court shall hear appeals against verdicts and other rulings of the District Courts.   

(c) The Supreme Court shall also sit as a High Court of Justice. When so sitting, it shall deliberate matters in which it deems it necessary to provide relief for the sake of justice, and are not under the jurisdiction of another court or tribunal.   

(d) Without prejudice to the generalness of the provisions in clause (c), the Supreme Court sitting as High Court of Justice, is authorized -     

(1) To grant orders for the release of persons unlawfully detained or imprisoned;   

(2) To grant orders to state authorities, to local authorities, to their officials, and to other bodies and persons holding public office under the law, to act or refrain from acting while lawfully exercising their duties, and if they were unlawfully elected or appointed - to refrain from acting;   

(3) To grant orders to courts, to tribunals, and to bodies and persons with judicial or quasi-judicial authority under the law - save courts that this law relates to, and save religious courts - to deal with a certain matter, or avoid dealing with, or continue to deal with a certain matter, and cancel a proceeding held or a ruling given unlawfully;    

(4) To grant orders to religious courts to deal with a certain matter on the basis of their jurisdiction, or  to avoid dealing or continuing to deal with a certain matter that falls outside their jurisdiction, provided that the court shall not entertain a request under this paragraph, should the appellant not have raised a question  of jurisdiction at the earliest opportunity that he had;  and if he did not have a reasonable opportunity to raise the question of jurisdiction before the ruling by the Religious Court, the court is entitled to quash a proceeding that took place, or a ruling that was given by the Religious Court without authority.   

(d1)      Notwithstanding what is stated in this Basic Law, a holder of judicial authority under law, including the Supreme Court sitting as the High Court of Justice, shall not address the reasonableness of a decision by the Government, the Prime Minister or a Government Minister, and will not issue an order in such a matter; in this section, “decision” means any decision, including in matters of appointments, or a decision to refrain from exercising authority.

(e) Other powers of the Supreme Court shall be prescribed by law. 

119.     The parties to these proceedings disagree as to the interpretation of sec. 15(d1) of the Basic Law. The Knesset is of the opinion that the Amendment can be construed narrowly such that it would apply only to the reasonableness standard as set out in Dapei Zahav, and not to “absurd” decisions that could have been voided on the basis of the standard as it was prior to that judgment. According to the Knesset, this construction, along with the broad construction of other laws and standards of review would lessen the problems raised by the Amendment, and that is preferable to its being voided.

120.     All the other parties to the petitions – the Petitioners, the Attorney General, and like them, the Government Respondents and the Chair of the Constitution Committee as well – do not agree with the Knesset’s position and are all of the opinion that such narrow interpretation is not possible. The Petitioners emphasize that the interpretation suggested by the Knesset would actually constitute judicial lawmaking, and that “absurdity” is part of the reasonableness standard that cannot be addressed separately from it (see: paras. 103-105 of the Summary Brief of the Petitioners in HCJ 5659/23; and pp. 123-154 of the Transcript of the hearing of Sept. 12, 2023). The Attorney General is of the opinion that adopting a construction that would narrow the application of the Amendment to a particular meaning of “reasonableness” or to a particular category of “decisions” is not consistent with the language of the Amendment, contradicts the constituent intent – which expressly rejected those distinctions in the framework of the legislative process – and it constitutes a kind of redrafting of the arrangement by the Court (paras. 428 and 435 of the Attorney General’s affidavit).

            The Government Respondents are also of the opinion that there is no place for adopting such a narrow construction. In their view, it contradicts the language of the Amendment and the constituent intent, and they emphasize that in the absence of an actual possibility to distinguish the various meanings of the reasonableness standard, the constituent authority chose to make a “conclusive distinction” that would limit the boundaries of the standard on the basis of the identity of the decision maker alone. Therefore, it is the position of the Government Respondents that the Amendment should be construed in a manner that applies it to “any and every type” of reasonableness “even if someone might think that the decision was unreasonable in the extreme in accordance with Wednesbury” (para. 45 of the Government Respondents’ Supplemental Pleadings); and see: the statement of the Government Respondents’ attorney at pp. 60-63 of the Transcript of Sept. 12, 2023). The Chair of the Constitution Committee, MK Rothman, expressed a similar view, noting that the Amendment prevents all judicial review of the reasonableness of decisions by the elected echelon in all the senses of the standard (pp. 37-39 of the Transcript of Sept. 12, 2023).

121.     The question before us is, therefore – as the Knesset’s attorney suggested – is it possible to interpret the Amendment in a manner that limits its application only to a particular meaning of “reasonableness”?

            I do not think so. In my opinion, such a construction lacks any foothold in the language of the Amendment, it expressly contradicts the legislative history and the subjective purpose of the Amendment, and deviates from the legitimate boundaries of interpretation, as will be explained below.

122.     Indeed, we have a rule that “it is preferable to limit the scope of a law through interpretation, rather than achieve that very same limitation by declaring a part of that law as being void” (HCJ 4562/92 Zandberg v. Broadcasting Authority [75] 814 (hereinafter: Zandberg); and see: HCJ 9098/01 Ganis v. Ministry of Building and Housing [76] (hereinafter: Ganis); HCJ 781/15 Arad Pinkas v. Committee for Approval of Embryo Carrying Agreements [77] para. 21 of my opinion (hereinafter: Arad Pinkas)). This rule in regard to the preference for employing interpretative tools rather than addressing the validity of the law, which was established in regard to the interpretation of primary legislation, is all the more appropriate to the interpretation of Basic Laws (Hasson, para. 59 of my opinion).

123.     However, interpretation, and constitutional interpretation in particular, must be grounded in the language of the text, and it is first and foremost derived from it (Aharon Barak, Interpretation in Law – Constitutional Interpretation 135 (1994); Aharon Barak, “The Interpretation of Basic Laws,” 22 Mishpatim 31, 34-35 (1992). In this regard, it has been held:

The constitutional reasons that limit the power of a judge as an interpreter apply with full force when the judge interprets a constitutional text. Specifically in this situation, he must demonstrate great caution not to cross the linguistic border and create a new constitutional text (HCJ 2257/04 Hadash-Ta’al Faction v. Chair of the Central Elections Committee for the 17th Knesset, [78] 710).

            Therefore, the language of the constitutional text is always the starting point for the interpretation of its provisions. The linguistic basis, although it is not the only element in translation, it the one that distinguishes between “the writing of a new work and the interpretation of an existing work” (Aharon Barak, Interpretation and Judging: Principles of an Israeli Theory of Interpretation,” Selected Essays, vol. 1, 121, 138 (2000) [Hebrew]; and see: CA 8569/06 Director of Land Taxation v. Polity [79] 307 (hereinafter: Polity); CFH 5783/14 Tzemach v. El Al Israel Airlines, Ltd. [80] para. 52).

124.     I have not lost sight of the interpretive principle established in regard to restricting judicial review – which is the subject of the Amendment – according to which the legislature is presumed not to intend to infringe the authority of the Court and therefore, such legislation should be interpreted “strictly and narrowly” (National Insurance Institute, 451; HCJ 212/03 Herut v. Cheshin [81] 756 (hereinafter: Herut)). However, this is not a presumptio juris et de jure and the said rule can be rebutted where a legal provision adopts “explicit and unequivocal language that leaves no room for doubt” (HCJ 403/71 Alkourdi v. National Labour Court [82] 72) (emphasis added); and see: National Insurance Institute, 451; HCJ 1260/19 Kramer v. Ombudsman of Public Complaints against State Representatives [83], para. 11).

125.     In my opinion, the comprehensive, unqualified language of the Amendment is, indeed, “explicit and unequivocal”. It lacks any foothold for the suggested narrow interpretation, and leaves “no room for doubt” as to the application of the Amendment to the reasonableness standard in its entirety. In my view, according to its language, there are no grounds for the proposed distinction among various understandings of the reasonableness standard as it has developed in the case law, and in this regard, it was already held in another matter that: “the judge interprets a text created by the legislature, and even realizing a goal, as lofty as it may be, requires an ‘Archimedean point’ in the language of the law. Deviation from this principle goes to the very root of the matter and is incompatible with the accepted principles of interpretation” (Polity, 303; and see: Zandberg, 803; Aharon Barak, Interpretation in Law – Statutory Interpretation 83 (1993) [Hebrew] (hereinafter: Barak, Statutory Interpretation)).

126.     An examination of the linguistic meaning of the term “reasonableness”, as it has developed and taken root over the years in the case law of this Court in all that concerns judicial review of the exercise of discretion by an authority, demonstrates that in the absence of express linguistic grounds, it is no longer possible to distinguish among the various senses of the standard. In other words, the term “unreasonableness” means, inter alia, also absurdity. Therefore, abolishing the reasonableness standard in accordance with the distinction established by the Amendment concerning the identity of the decision maker, necessarily leads to its abolition even in regard to absurd decisions by that group.

            As was explained in detail at the beginning of this opinion, the reasonableness standard has been part of our legal system since the earliest days of the state. In the beginning, the standard allowed for the voiding of an administrative decision if it was found to be “absurd”, “illogical” or “outrageous”, in a manner similar to the English standard established in Wednesbury (Binenbaum, 385-386; Dizengoff, 1039). The broadening of the reasonableness standard is usually ascribed to the judgment in Dapei Zahav, although, in fact, this Court had previously voided administrative decisions on the basis of improper balancing of the relevant interests, even if it did so without expressly noting the reasonableness standard (see, e.g.: Kol Ha’am; HCJ 243/62 Israel Film Studios. v. Levi Geri [84]). The connection between the meaning of the term “reasonableness” as simply absurd and its also applying to a defect in balancing the various relevant considerations was already expressly noted in Dakka, which was handed down years before Dapei Zahav, and in which Justice Shamgar held that the reasonableness standard could also lead to the voiding of administrative decisions where “the relevant considerations were granted proportions so distorted in relation to one another that the final decision became inherently absurd and therefore absolutely unreasonable” (ibid., 105 (emphasis added)).

127.     Thus, we find that Dapei Zahav was not created in a vacuum. It relied upon extensive case law of this Court that had developed in accordance with the principles of Common Law and added to the narrow meaning of the unreasonableness standard, which focused upon the absurdity of the decision, a broader test that examined the balance struck by the authority among the various considerations before reaching the decision. This does not mean that absurd decisions no longer fall within the scope of the term “reasonableness”. As noted in Dakka, giving distorted weight to the various relevant considerations in making an administrative decision may demonstrate its absurdity and thus also its unreasonableness. This Court has reiterated this point over the course of the last decades in a series of judgments. Thus, for example, Ganor noted that “the source of the unreasonableness of the Attorney General’s decision is in a material deviation that goes to the very heart of the matter, to the point that the final decision is inherently absurd and therefore completely unreasonable” (ibid., 523 (emphasis added); and see, inter alia: HCJ 910/86 Ressler v. Minister of Defense [85] 503 (hereinafter: Ressler); HCJ 581/87 Zucker v. Minister of the Interior [86] 545; Pinhasi, 464; HCJ 320/96 Garman v. Herzliya City Council [87] 239; HCJ 5331/13 Tayib v. Attorney General [88] para. 28, per Justice Rubinstein).

128.     In accordance with the long-standing principles of administrative law, absurdity is thus rooted in the reasonableness standard, and in the absence of express linguistic grounds, it is not possible to establish an arbitrary interpretive boundary that would break the standard down into it parts and sever the existing relationship among all its meanings.

            Therefore, as the Government Respondents and the Chair of the Constitution Committee also emphasized in their arguments, the clear, unequivocal meaning of the language of the Amendment is that it prevents all judicial review of the elected echelon on the basis of the reasonableness standard in all its senses, including absurd decisions.

129.     Even if I were to assume, only for the sake of argument, that the language of the Amendment can somehow bear the construction proposed by the Knesset’s attorneys, it is hard to ignore the fact that this interpretation clearly contradicts the subjective purpose of the Amendment, as it can be understood from its legislative history and as it is understood by all those involved in its enaction, among them the Knesset Legal Advisor himself. Thus, throughout the legislative process, the legal advisors to the Committee and the Government, as well as jurists and other professionals addressed the problems that inhered in the comprehensive, unqualified language of the proposed amendment, which entirely rules out judicial review on the basis of the reasonableness standard without distinguishing among its various meanings or among different types of decisions of the elected echelon. This position was already expressed, inter alia, in the Preparatory Document of June 23, 2023, in which the Committee’s legal advisor pointed out to the Committee that the proposed amendment does not abolish the reasonableness standard only in its sense in Dapei Zahav, but categorically abolishes its use, even in the narrow sense of “absurdity” (p. 8 of the Preparatory Document).

130.     Although the Explanatory Notes of the Amendment Bill, as presented for the first reading on July 5, 2023, included a quote from Dapei Zahav in order to describe the reasonableness standard today, and noted that it has been argued in regard to the reasonableness standard in this sense that “establishing a value-based balance among the various considerations related to an administrative decision should be given to the public’s elected representatives and not to the court”. However, the Committee’s legal advisor, Advocate Blay, again explained even after the publication of the Explanatory Notes, that the wording of the Amendment “does not leave a standard of extreme unreasonableness in the sense of absurdity in regard to elected officials” (Transcript of meeting 121, p. 11). In other words, in the opinion of the Committee’s legal advisor, who composed the Explanatory Notes (see: the clarification by MK Rothman and the Knesset’s attorney in the hearing before us, pp. 38, 193-194 of the Transcript of the hearing on Sept. 12, 2023); para. 6(d) for the Knesset’s Supplemental Brief), the mention of Dapei Zahav in the Explanatory Notes does not mean that the Amendment was intended to apply to the reasonableness standard only in the sense addressed there. A similar view was expressed by the Deputy Attorney General, Advocate Limon, who was of the opinion that we are concerned with a most extreme proposal that “entirely annuls the Supreme Court’s case law on the subject of reasonableness, not only the judgment in Dapei Zahav […] but from the earliest days of the state” (Transcript of meeting 121, p. 33). The members of the Committee also addressed the problem inherent in the proposed amendment that, in effect, comprehensively abolishes the reasonableness standard in all its senses. Thus, for example, MK Gilad Kariv argued that the Amendment Bill “grants immunity even to extreme unreasonableness or absurdly unreasonable decisions by the political echelon. You are not proposing a return to the situation prior to Dapei Zahav” (Transcript of meeting 105, p. 100; and see the position of MK Orit Farkash-Cohen in the Transcript of meeting 126 of the Constitution Committee, the 25^th Knesset, 94 (July 16, 2023) (hereinafter: Transcript of meeting 126).

131.     Against the above background, various alternatives were proposed in the Committee’s meetings for softening the comprehensive language of the Amendment. However, these proposals were expressly rejected by the Chair of the Committee and the coalition’s representatives on the Committee. The Chair of the Committee, MK Rothman, who initiated the Amendment, noted that there is no way “to draw the line” between the various meanings of the reasonableness standard and that adopting the proposed distinctions would lead to a blurring of its standard’s boundaries by the Court and would effectively empty the Amendment of meaning (Transcript of meeting 105, p. 113; Transcript of meeting 125, p. 15). Therefore, MK Rothman was of the opinion that there is no alternative to the comprehensive abolition of the reasonableness standard in regard to all decisions of the elected echelon, and in all the senses of the standard. In the course of presenting the Amendment Bill to the Knesset for a second and third reading, MK Rothman added in this regard:

Others proposed to return to the unreasonableness standard of Wednesbury, but this solution, as many have noted, does not prove itself, since Justice Barak himself in the Dapei Zahav judgment claimed that he was relying upon the extreme unreasonableness standard. […]

Therefore, it is proposed to establish in Basic Law: The Judiciary […] that a judicial authority will not be able to address the matter of the reasonableness of the Government in a plenary session […] of the Prime Minister, or of another minister, or issue an order against any of them in regard to the reasonableness of its decision, whether by virtue of the original reasonableness standard or whether by virtue of the new reasonableness standard, and that also in regard to appointments and decisions not to exercise authority […] as far as I am concerned, and I believe that I am speaking on behalf of the members of the coalition of course, these [things] reflect the principles and foundations grounding this bill (Transcript of session 97 of the 25^th Knesset, 551-552 (July 23, 2023) (emphasis added).

132.     Thus, tracing the legislative history of the Amendment shows that the Amendment’s silence in regard to the term “reasonableness” is not a “legislative mishap” or the result of not taking a stand on the issue, which needs to be remedied through interpretation (see and compare: CA 108/59 CA 108/59 Pritzker v. Niv [89] 1549; Herut, 759). On the contrary, the comprehensive language of the Amendment was the result of a conscious choice of the drafter who sought to prohibit the use of the reasonableness standard in regard to all decisions at the elected echelon and in regard to every sense of the standard. Under these circumstances, interpretation that seeks to narrow the scope of the Amendment only to the reasonableness standard in its sense in Dapei Zahav is not only incompatible with the language of the provision, but also clearly contrary to the subjective, declared purpose of the Amendment.

133.     Actually, even the Knesset’s attorney emphasized that “from the language of the amended Basic Law, it would appear that the amended Basic Law applies to reasonableness in all its aspects, without distinguishing between the traditional reasonableness standard and the new reasonableness standard” (para. 14 of the Knesset’s Supplemental Brief). He also does not dispute that the subjective purpose leads to the same conclusion. However, according to his approach, the Basic Law should not be interpreted on the basis of those tests, and that primacy should be given to the principle that “narrow interpretation of a law should be preferred to its being voided” (ibid.).

134.     Indeed, according to the doctrine of purposive interpretation employed in our system, the subjective purpose is only one element of interpretation, and as a rule, it should not be given decisive weight over the objective purpose, which treats of the values and principles that a legislative act is intended to realize in a modern democratic society (Barak, Statutory Interpretation, 202; Anti-Corruption Movement, para. 62, per Deputy President Vogelman; HCJFH 5026/16 Gini v. Chief Rabbinate [90] paras. 24-25, per President Naor). However, while there is no doubt about the existence of important objective purposes that will be realized if the Amendment is subjected to narrow interpretation, I do not believe that, under the circumstances, they can be granted primacy over the express language of the Amendment and its declared subjective purpose.

135.     In my opinion, this conclusion derives from the inherent limitations upon interpretation. Thus, the fundamental principle in our system states that we are obligated to seek out an interpretive solution that will avoid the need to decide upon the validity of a piece of legislation (see, among many: HCJ 3267/97 Rubinstein v. Minister of Defense [91] 524 (hereinafter: Rubinstein); HCJ 5113/12 Friedman v. Knesset [92] para. 5, per Justice Arbel; Anti-Corruption Movement, para. 31, per Deputy President Vogelman). However, at times, the Court is forced to decide that no such interpretation is possible. This is particularly the case when such an interpretation is artificial and leads to emptying the legal arrangement of all content or leads, in practice, to rewriting the law (see: HCJ 7146/12 Adam v. Knesset [93] 848; HCJ 7385/13 Eitan - Israeli Immigration Policy Center v. Government [94] para. 200, per Justice Vogelman (hereinafter: Eitan); Arad Pinkas, para. 21 of my opinion; and see my comment in this regard in HCJ 5469/20 National Responsibility - Israel My Home v. Government of Israel [95] para. 39 of my opinion).

            Such is the case before us. In my opinion, an interpretation that would narrowly construe the application of the amendment that abolishes the reasonableness standard in regard to the elected echelon only in its sense in Dapei Zahav would be a dubious interpretation that would effectively constitute a redrafting of the Amendment by the Court in a sense that would be completely different from that of the existing Amendment. This is all the more so because we are concerned with interpretation that touches upon the core of the constitutional arrangement and not its ancillary aspects, such as the time of its entry into force (see, e.g., Ganis, 258; Anti-Corruption Movement, paras. 33-34, per Deputy President Vogelman).

136.     For all the above reasons, I do not believe that we can adopt the distinction among the various meanings of the reasonableness standard proposed by the Knesset in regard to the application of the Amendment by means of interpretation. My conclusion is, therefore, that the Amendment should be interpreted in accordance with its plain meaning, i.e. – as a provision that comprehensively abolishes judicial review on the basis of the reasonableness standard, in all its senses, as regards decisions by the Government, the Prime Minister, and the ministers.

 

            D.2.     The language of the Amendment – extreme and exceptional

137.     Before addressing the significance and consequences of the amendment that is the subject of the petitions. I would like to dwell upon the language of the Amendment and point out five different aspects that testify to how extreme and exceptional it is:

            First, as explained above, the Amendment relates to all the senses of the reasonableness standard, and therefore prevents intervention even in absurd, patently unreasonable governmental decisions as long as they so not comprise any other administrative defect.

            Second, the Amendment applies to every court, and in effect to any “holder of judicial authority under law”, including the High Court of Justice that is granted general authority to grant “relief for the sake of justice” in accordance with sec. 15 (c) of Basic Law: The Judiciary. The fact that the Amendment explicitly abolishes even the jurisdiction of the Hight Court of Justice in this regard testifies to its extremeness in comparison to other provisions that limited recourse to the courts but that were interpreted as leaving the possibility, in principle, of filing a petition to the High Court of Justice (see, among many examples: HCJ 76/63 Trudler v. Election Officers [96] 2511-2512; HCJ 68/07 Robinson v. State of Israel [97] para. 3).

            Third, the Amendment not only prevents granting relief by virtue of the reasonableness standard in regard to the elected echelon (“will not issue an order”), but also prevents the very addressing of the question of the reasonableness of those decisions (“shall not address”). In other words, following the Amendment, a person who is directly harmed by a decision of a minister due to unreasonableness will not be able to bring that matter before the Court.

            Fourth, the Amendment applies to every decision, as long as it was made by the Government, the Prime Minister, or a Government Minister. To remove all doubt, the end of the section clarifies (“‘decision’ means any decision, […]”). The case law and legal literature have noted more than once in regard to the reasonableness standard that the judicial review derives from the type of decision made and from the nature of the authority exercised (HCJ 2533/97 Movement for Quality Government v. Government [98] 57-58; HCJ 1163/98 Sadot v. Prisons Service [99] 846; Barak-Erez, Administrative Law, 762-757; Rubinstein & Medina, 223).  It has been held in this context in regard to decisions by the Government or any of its members that “the bounds of the ‘range of reasonableness’ […] widen or narrow depending on the type of the power exercised” (Hanegbi 2003, 841). Nevertheless, the Amendment applies comprehensively to all decisions, without exception. The Amendment does not distinguish between Government decisions that establish broad policy and “individual” decisions that are made on a daily basis and directly affect the personal matters of a particular person of body. Likewise, the Amendment does not distinguish between decisions made by the Government by virtue of the Knesset’s confidence and decisions made by a transition government. It even does not distinguish between areas in which there is a sufficient legal response by means of other standards of review and areas in which the reasonableness standard is, in effect, the only standard by which a remedy can be obtained from the Court, as shall be addressed in detail below.

            Fifth, the Amendment also prevents intervention in a “decision to refrain from exercising authority”. The Knesset, on its part, emphasized that the Amendment does not apply to situations in which an authority refrains from making a decision unless a positive decision was made not to exercise authority (para. 22 of its Supplemental Brief). I accept this interpretation, but even this clarification leaves the door open for the Government and its members to knowingly shirk exercising a particular authority, and prevents the Court from granting a remedy for omissions that severely harm an individual or the entire public.

138.     The Knesset, the Committee Chair, and the Government argued that the Amendment relies upon the principled distinction presented by my colleague Justice Sohlberg in his academic writing between decisions of the elected and the professional echelons. As I understand it – although Justice Sohlberg criticized certain trends in the Court’s decisions – he did not propose completely and comprehensively restricting the use of the reasonableness standard, and certainly not by means of enacting a Basic Law. However, the Amendment, by the extreme language adopted, does not leave the Court any flexibility and discretion in this regard: it deprives every court of the very possibility to consider and hear arguments upon the subject, it entirely abolishes the reasonableness standard in regard to the elected echelon and in regard to every decision, including a decision to refrain from exercising authority.

139.     In the course of the Committee’s debates, and in the framework of the Committee’s legal advisors attempts to “soften” the Amendment’s extreme language, the Preparatory Document of June 23, 2023 had already suggested considering an alternative model by which the restriction of the reasonableness standard would apply “in regard to all the decisions made by the elected echelon, but only in regard to a certain type of decisions” (p. 12 of the Preparatory Document – emphasis original). In the meeting of June 25, 2023, the Committee’s legal advisor, Advocate Gur Blay, again proposed “to focus the restriction [on the use of the reasonableness standard] to certain decisions of the elected echelon” and explained that the significance of the Amendment’s comprehensive language is the elimination of judicial review of administrative decisions “even in extreme situations […] in which it was possible to intervene even under the old Wednesbury rule” (Transcript of meeting 105, pp. 86, 106). Two days later, Advocate Blay emphasized the need “to make an exception for every decision that directly affects an individual, whether it is what the literature refers to as an individual right or an individual interest” (Transcript of meeting 109 of the Constitution Committee of the 25^th Knesset, 45 (June 27, 2023) (hereinafter: Transcript of meeting 109)). After the Amendment Bill was approved in a first reading, Advocate Blay again insisted that the Amendment was more sweeping than every other course of action considered in regard to the reasonableness standard, and noted three primary areas in which no effective judicial review would remain following the Amendment: decisions by a transition government, decisions in regard to appointments and dismissals, and individual decisions that involve a violation of protected rights (Transcript of meeting 121, pp. 11-13).

            Despite all of these remarks and proposals, the Amendment Bill remained virtually as is, and the main change introduced before its approval in a second and third reading even exacerbated the existing wording by clarifying that “decision” means “any decision, including in matters of appointments, or a decision to refrain from exercising authority”.

140.     As will be explained below, the extreme, extraordinary wording of the Amendment, and given the present constitutional reality, inflicted harm of unprecedented scope upon two of the core characteristics of our democratic system – the principle of separation of powers and the principle of the rule of law.

            D.3.     Infringement of the separation of powers

141.     The idea at the base of the principle of separation of powers is the division of power and the distribution of authority among the branches of government – “the legislature should exercise legislative power; the executive should exercise executive power; the judiciary should exercise judicial power” (HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister [100] 55 (hereinafter: Supreme Monitoring Committee)). However, this is but one element of the principle of separation of powers. It is now clear to all that the separation of powers in a democratic state also means mutual oversight among the branches such that each checks and balances the others (ibid.; and see: HCJ 5364/94 Wilner v. Chair of the Israel Labor Party [101] 783; and see: HCJ 306/81 Sharon v. Knesset House Committee [102] 141; Rubinstein & Medina, 127-128). As noted in the case law: “This delicate and complex formula of the decentralization of power and mutual supervision is what empowers the three branches of government and determines the relations among them. This is what creates and preserves the rule of law and democracy, and undermining this is likely to endanger the whole system of government” (Supreme Monitoring Committee, 55; emphasis added).

            It is important to emphasize that the primary purpose of the principle of separation of powers does not focus on the branches themselves or the propriety of the relationship among them. The separation of powers is intended to “prevent the concentration of power in one governmental authority in a manner liable to violate individual freedom” (Rubinstein, 512; on the historical sources of the principle of separation of powers, see: Distribution of Power, 24-13). It is, indeed, a principle that entirely rests upon the protecting of the individual from the government.

142.     Given the great power concentrated in the executive branch in general, and the Government in particular, in the Israeli system, judicial review constitutes an oversight mechanism whose importance in ensuring the protection of the rights of the individual against their violation by the government cannot be overstated. It has already been held in this regard that “the absence of judicial supervision will end in the violation of human liberty” (LCrimA 2060/97 Valinchik v. Tel Aviv District Psychiatrist [103] 713).

            In the present case, we should emphasize that “according to the approach of administrative law in recent generations, the ground of reasonableness acts as a main and essential instrument of judicial review of the administration, and it stands at the forefront of the protection of the individual and the public against arbitrary government” (Emunah, 486). As will be explained below, Amendment no. 3 to Basic Law: The Judiciary leads to an even greater concentration of governmental power in the hands of the elected echelon and to situations in which the individual will be left without protection against severe harm by the Government or by one of its ministers because recourse to the Court has been blocked.

143.     It can be inferred from the Explanatory Notes of the Amendment Bill that it was based upon the concept that decisions by the elected echelon generally treat of setting policy principles that reflect the worldview upon which the members of the Government were elected, and therefore “balancing the values of the various considerations in regard to the administrative decision must be granted to the public’s elected representatives and not to the court” (p. 110 of the Amendment Bill). However, as was made clear in the course of the Committee’s debates, the decisions of the Government and its ministers do not merely comprise a theoretical balance of values. They directly influence the lives of specific people, and at times, involve their severe harm (see, inter alia, Transcript of meeting 105, pp. 116-117; Transcript of meeting 121, pp. 12-13, 15-16).

144.     Many of the powers that the law grants to government ministers concern individual matters that directly affect a particular person or entity. In this regard, we might note, as a very partial, non-comprehensive list, the following powers:

A.        The power of the Minister of the Interior to grant or invalidate a residence permit and to prevent the granting of an immigration visa (Citizenship Law, 5712-1952; Entry into Israel Law, 5712-1952; sec, 2(b) of the Law of Return).

B.        The power to grant or revoke licenses, concessions, and permits (see, e.g., sec. 41 of the Physicians Ordinance [New Version], 5737-1976; sec. 19 of the Veterinarian Doctors Law, 5751-1991; sec. 10A of the Natural Gas Sector Law, 5762-2002; sec. 4(b2) of the Electricity Sector Law, 5756-1996; various powers under the Communications (Telecommunications and Broadcasting) Law, 5742-1982; secs. 11(a) and 11b(a) of the Engineers and Architects Law, 5718-1958; sec. 3 of the Meat and Meat Products Law, 5754-1994; secs. 2-3 of the Explosives Law, 5714-1954; sec. 4A(a) of the Seeds Law, 5716-1956).

C.        Powers concerning the taking of land for public purposes, compensation for harmful plans, and granting an exemption from improvement assessments (sec. 3 of the Lands (Acquisition for Public Purposes) Ordinance, 1943; secs. 189(b), 190(1)(2), 197(b) and sec. 19(b) of the Third Schedule of the Building and Planning Law, 5725-1965 (hereinafter: the Building and Planning Law)).

D.        Powers concerning criminal proceedings (sec. 18 of the Extradition Law, 5714-1954; secs. 7-8 and 13 of the Serving a Prison Sentence in the State of Nationality Law, 5757-1996., 5757-1996. And see sec. 12 of Basic Law: The President and HCJFH 219/09 Minister of Justice v. Zohar [104] concerning the Minister of Justice’s countersignature on pardons).

E.         Powers concerning workers’ rights (secs. 9D1 and 12 of the Hours of Work and Rest Law, 5711-1951; secs 1 and 9 of the Employment of Women Law, 5714-1954; sec. 28 of the Severance Pay Law, 5723-1963; sec. 2(c) of the Youth Labor Law, 5713-1953; sec 1E(c)(1) of the Foreign Workers Law, 5751-1991).

F.         Powers concerning matters of family, personal status, and inheritance (see, e.g.: sec. 28P of the Adoption of Children Law, 5741-1981; sec. 16 of the Names Law, 5716-1956; sec. 17(b) of the Inheritance Law, 5725-1965).

            In some cases, the said powers have been delegated by the minister to other bodies, but as we know, such a delegation can be revoked at any time (see: Barak-Erez, Administrative Law, 187-188 and references there), while the power – under the enabling law – is in the hands of the minister.

145.     Not infrequently, the Court is called upon to protect the important rights and interests of individuals as a result of decisions by the elected echelon that were tainted by extreme unreasonableness and expressed a distorted balance of the various, relevant considerations. So it was, for example, when the Minister of Defense refused a request by bereft families to change the wording on a monument dedicated to their loved ones (HCJ 6069/00 Association for Perpetuating the Memory of the Victims of the Helicopter Disaster in She’ar Yishuv v. Minister of Defense [105]; when the Minister of the Interior refused to grant status to the daughter of an Israeli citizen who was raised and educated in Israel, regarding whom it was  decided to grant permanent status in the past, but who was never informed of that decision (Bautista); and also see: HCJ 3840/13 Anonymous v. Minister of the Interior [106]; and when decisions by ministers significantly harmed the economic interests of individuals (see, e.g.: HCJ 176/90 Machnes v. Minister of Labor and Welfare [107] 730; HCJ 1829/93 Nazareth Transportation and Tourism Co. v. Minister of Finance [108]; HCJ 5946/03 Keshet Prima v. Supervisor of Prices [109]). In one case in which it was decided to deprive a person of his being awarded the Israel Prize for non-professional reasons, it was even held that the minister’s decision was so unreasonable that it did not even meet the “narrow” reasonableness standard, as the decision was irrational (HCJ 8076/21 Selection Committee for the 1981 Israel Prize Computer Science Research v. Minister of Education [110] para. 52, per Justice Y. Wilner); and compare to the case of an unreasonable decision to refrain from appointing a person found suitable by the relevant professionals: HCJ 8134/11 Asher v. Minister of Finance [111] para. 20, per Deputy President Rivlin).

146.     Even broad decisions that can be viewed as decisions concerning policy principles may lead to very severe harm to individuals, specifically because of the importance of the areas for which the Government and its members are responsible. The clear example is Wasser, in which the Court intervened in a Government decision to only partially protect the educational institutions in the “Gaza perimeter”, holding that in view of the real, concrete threat, the balance struck “between the professional-security considerations and the budgetary considerations significantly departs from the margin of reasonableness” (ibid., 215). A recent example of this is Zilber, in which the Court held that the new policy of the Minister of Finance and the Minister of the Economy and Industry for changing the criteria for support for the subsidizing of daycare centers for the families of yeshiva students comprised a short transition clause that was unreasonable in the extreme (see and compare: HCJ 5290/97 Ezra – National Hareidi Youth Movement v. Minister of Religious Affairs [112] 430).

147.     We would emphasize that – contrary to the claims made in the course of enacting the Amendment and by some of the Respondents in these proceedings – the other administrative law standards for review do not provide an effective alternative to the reasonableness standard. Therefore, in many of the cases cited above and in additional cases, it would not have been possible to grant a remedy to the petitioners without the reasonableness standard, and they would have found themselves in a hopeless situation.

148.     One of the central arguments raised in the Committee’s debates, and that was raised by some of the Respondents in this regard, is that the proportionality standard in any case serves as a standard for judicial review of decisions that violate basic rights, and therefore the harm caused by the abolition of the reasonableness standard in regard to decisions by the elected echelon is not dramatic (see: the statement of MK Rothman in the Transcript of meeting 105, p. 77, and the Transcript of meeting 113 of the Constitution Committee of the 25^th Knesset, 55 (July 3, 2023); para. 332 of the Knesset’s Affidavit in Response; para. 245 of the Government Respondents’ Affidavit in Response).

            Over the years, our system developed and formed the proportionality standard primarily against the background of its express inclusion in Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation, and it is now viewed in the case law as an important standard for providing protection in cases of the violation of individual rights (see, among many: HCJ 2651/09 Association for Civil Rights in Israel v. Minister of the Interior [113], para. 19, per Justice Danziger; HCJ 79/17 Ziada v. Commander of the IDF Forces in the West Bank [114], para. 73, per Deputy President (emer.) Joubran; and see: HCJ 11437/05 Kav LaOved v. Minister of the Interior [115] 190-193; Barak-Erez, Administrative Law, 784-785). However, as the examples presented above demonstrate, sometimes an individual suffers significant harm as the result of a governmental decision even when it is not possible to identify a direct violation of a right (in this regard, also see the statement of Advocate Blay in the Transcript of meeting 109, pp. 41-42, and the Transcript of meeting 120 of the Constitution Committee of the 25^th Knesset, 76 (July 7, 2023) (hereinafter: Transcript of meeting 120)). This is so, for example, when we are concerned with a flawed balance between budgetary considerations and public security considerations, or when the harmed interests are economic and social interests that are not vested rights, like subsidies, social services, licenses, appointments, prizes and matters of status. In such cases, the reasonableness standard may be the only effective legal tool for protecting the individual (see and compare other instances in which this standard served for intervention in the decisions of other authorities: Sela, in which a local council refrained from allocating land for the building of a mikveh and did not give proper weight to the harm to the religiously observant women in the community; HCJ 4988/19 Rosenzweig Moissa v. Public Utilities Electricity Authority [116] in which an order absolute was granted, finding that the list of consumers for whom the supply of electricity is vital and cannot be suspended for a debt was “limited in a manner that deviated from the margin of reasonableness”).

149.     This is also the case in regard to the standard of extraneous considerations. This, too, does not constitute an effective alternative to the reasonableness standard. A person claiming the existence of extraneous considerations in an authority’s decision must present an evidentiary foundation for his claim. That is a very significant burden given the fact that he is required to expose the improper motives of the authority or show circumstantial indicators of real weight that testify to such motives (see: HCJ 4500/07 Yachimovich v. Council of the Second Authority for Radio and Television [117] para. 12; HCJ 8756/07 “Mavoi Satum” Association v. Committee for the Appointment of Rabbinical Court Judges [118] para. 43; Barak-Erez, Administrative Law, 669-672). Due to the substantial evidentiary problems in this regard, a significant part of petitions based upon the claim of extraneous considerations are dismissed for lack of a factual foundation (ibid., 670). In addition, the extraneous considerations standard does not address the issue of a flaw in the balance struck by the authority among valid considerations (see: AAA 343/09 Jerusalem Open House for Gay Pride v. Jerusalem Municipality [119]), which is also a reason why this standard does not serve as an alternative to examining the reasonableness of a decision.

150.     Another standard mentioned in the Committee’s debates and in the arguments presented by the parties to these proceedings is that of arbitrariness (see, e.g.: Transcript of meeting 126, pp. 50 and 57; para. 316(a) of the Knesset’s Affidavit in Response). Even if I assume that we are concerned with a standard that is distinct from that of reasonableness and not one of the levels of reasonableness like “absurdity” (see various approaches in this regard in Zamir, Administrative Power, 3525-3537; Barak-Erez. Administrative Law, 724; and see: Transcript of meeting 126, p. 127) – arbitrariness, by its nature, concerns rare and extreme government conduct. Thus, the case law and the literature have referred to an arbitrary decision as one made “on the basis of just a feeling” or “disconnected from the facts of the case” and even “a type of corruption” (HCJ 986/05 Peled v. Tel-Aviv Yafo Municipality [120] para. 14; Zamir, Administrative Power, 3446-3447; and see: AAA 1930/22 Jerusalem Open House for Gay Pride v. Jerusalem Municipality [121] para. 39, per Justice Groskopf; LCrimA 1611/16 State of Israel v. Vardi [122] paras. 70-72, per Deputy President Melcer; HCJ 376/81 Lugasi v. Minister of Communications [123] 460). A distinct standard based on each of these definitions cannot serve as a real alternative to examining the unreasonableness of decisions, inasmuch as these definitions are directed at edge cases in which it would appear that no discretion was exercised prior to making the decision.

151.     In practice, reasonableness is often a substitute for the other standards of review, and preventing the possibility of its use severely harms the individual in this regard as well. On more than one occasion, the case law has noted the role of the reasonableness standard as a kind of “valve concept” that can serve as an important tool for identifying administrative decisions suffering such severe defects as extraneous considerations, when there is an evidentiary problem in proving them (Hanegbi, 2014, para. 2, per President Naor; Netanyahu, para. 5, per Justice Barak-Erez; and see: Barak-Erez, Administrative Law, 726). In this regard, it was held that “in this residual form, the reasonableness doctrine yields great social benefit: it provides the courts with an effective, necessary tool for judicial review under uncertainty, and does not allow government authorities to hide their failures by exploiting the ambiguity of the factual foundation” (Scheinfeld, para. 35, per Justice Stein). In such circumstances, as Professor Itzhak Zamir noted well, “it would not be fair to deprive the petitioner the last resort of the reasonableness standard, which is, at times, the only grounds by which he may achieve justice through the courts and preserve the lawfulness of the administration” (Zamir, Administrative Power, 3607).

152.     As we see, in the existing legal situation, the other grounds for review cannot compensate for the broad harm to the individual if a series of decisions made by the elected echelon on a daily basis will be immune to review on the basis of reasonableness. In this regard, it was noted in Emunah that:

Restricting the ground of reasonableness may create a vacuum in judicial review that may not be filled by other grounds of review and may seriously curtail the willingness of the court to intervene in cases where the administrative authority did not consider all and only the relevant considerations in its decision or considered them but did not give them their proper relative weight, or also considered irrelevant considerations. It is easy to imagine the damage that such a process can be expected to cause to the concept of the legality of administrative action and the purpose of protecting the citizen in his relationship with the government, which lies at the heart of the definition of the grounds of judicial review of administrative action (ibid., 487).

153.     The Knesset argues that over the course of time it will be possible to contend with the consequences of the Amendment through the use of judicial tools by developing new standards or by changing the way that the existing standards for review are implemented. However, this speculative assumption does not provide a response to the distress of individuals already being harmed by unreasonable administrative decisions who cannot wait years for substantive changes that may or may not be made in administrative law.

            The possibility of replacing judicial review of unreasonable decisions with public or parliamentary oversight, a possibility raised by the Knesset and the Government Respondents (see: paras. 318-319 of the Knesset’s Affidavit in Response; para. 265 of the Government Respondents’ Affidavit in Response) also provides no response to the serious harm to the individual that is caused by the Amendment. On the institutional level, the Knesset and its committees are not able – nor intended – to carry out continuous, effective oversight of the thousands of decisions made by the Government and the ministers every year, many of which are of an individual nature (this was pointed out by the legal advisor to the Committee on p. 11 of the Preparatory Document of June 23, 2023; on the limited oversight capability of the Knesset, see: Chen Friedberg & Reuven Hazan, Legislative Oversight of the Executive Branch in Israel: Current Status and Proposed Reform (Policy Paper 77, Israel Democracy Institute, 2009) [Hebrew]). The resolution of conflicts between the citizen and the government in a democracy is carried out in court (see: HCJ 287/69 Meiron v. Minister of Labor [124] 362). Parliamentary oversight mechanisms focus upon “procedures of establishing general policy by the Government and [supervision] of them”, and not upon specific instances that come to the courts as a matter of course (Dotan, Judicial Review, 82-83). This is the case even without addressing the inherent problem that there is a coalition majority in the Knesset and its committees whose ability to serve as an effective check upon the Government’s activities is doubtful, to put it mildly (see and compare: ibid., 85).

154.     There is also no substance to the argument by the Government Respondents that the Amendment only establishes “a norm [that is] accepted in the overwhelming majority of western democratic states” in regard to the applicability of the reasonableness standard (para. 258 of their Affidavit in Response). First, as already noted, the consequences of the Amendment must be examined against the background of the specific constitutional context in which it was adopted. It is clear that in a system in which the Government controls the legislative branch, and judicial review is the only effective mechanism that serves as a check upon its actions, significantly limiting the reasonableness standard inflicts far more severe and significant harm to the separation of powers that the harm that might be caused as a result of a similar amendment in systems that are equipped with a range of mechanisms of checks and balances.

            Moreover, the argument itself is imprecise. The global trend over the last decades is one of expanding the application of the reasonableness standard and others like it for the review of administrative discretion, and not their reduction (for details, see the Preparatory Document of June 23, 2023, p. 6; and see: Barak-Erez, Administrative Law, 724). A salient example of this can be found in Great Britain where the narrow Wednesbury principle was first developed. Today, the British system applies a more expansive approach to the reasonableness standard (see: Cohn, “Comparative Aspects”, 782-790; Harry Woolf et al., De Smith’s Judicial Review, para. 11-099 (8^th ed., 1018), and recent judgments have also explained that, as in the Israeli approach, the reasonableness standard also comprises a “balancing” aspect (see: ibid., para. 11-030; Kennedy v The Charity Commission [158] para. 54; Adam Perry, “Wednesbury Unreasonableness,” 82 Cambridge L.J. 483, 486 (2023)). Moreover, the British courts also examine the reasonableness of the decisions of ministers, while granting weight to their being elected officials (H.W.R. Wade & C.F. Forsyth, Administrative Law 318 (10^th ed., 2009); Padfield v Minister of Agriculture, Fisheries and Food [159]; and see: Zamir, Administrative Power, 3870-3871).

            In addition, over the last decade, the Supreme Courts of Australia and Canada comprehensively debated the reasonableness standard, in the course of which they grounded it as a central standard of review in administrative law. In Australia, the Supreme Court extended the criterion to the unreasonableness of decisions, while holding that the narrow test associated with Wednesbury should be abandoned and preference should be given to a more in-depth test (Minister for Immigration & Citizenship v Li [163]; the reasonableness test is even anchored in law in Australia: Administrative Decisions (Judicial Review) Act 1977, s. 5(2)(g)). In Canada, the Supreme Court comprehensively arranged the grounds for administrative review and strengthened the place and role of reasonableness as opposed to a de-novo review of the administrative decision, which would be undertaken only in exceptional cases (Canada (Minister of Citizenship and Immigration) v. Vavilov [164] 4 S.C.R. 653 (hereinafter: Vavilov); Paul Daly & Coleen Flood, Administrative Law in Context 351 (2021). The judgment made it clear that the reasonableness standard also applies to decisions made by ministers and to policy decisions (Vavilov, paras. 88-89). The literature has even noted that, in certain senses, judicial review of the decisions of ministers and other elected officials has become more strict since Vavilov (Paul Daly, “Vavilov and the Culture of Justification in Contemporary Administrative Law,” 100 Sup. Ct. Rev. 279, 303-304 (2021)).

            It should be further noted that although the reasonableness standard is not a primary ground in Continental law, in practice, even those legal systems carry out judicial review of administrative discretion on the basis of test that are materially similar, and they are often more strict in regard to the administrative authorities in comparison to those employed in the Common Law (Ron Shapira, “On the Reasonableness of Reasonableness,” The Israel Law & Liberty Forum Blog 1, 2 (Jan. 16, 2023) [Hebrew]; Itzhak Zamir, “Israeli Administrative Law in comparison to German Administrative Law,” 2 Mishpat Uminhal 109, 129-130 (1994) [Hebrew]; and see: John Bell & François Lichère, Contemporary French Administrative Law 191-195 (2002); Mahendra P. Singh, German Administrative Law in Common Law Perspective 165-166 (2001)).

155.     The comparative survey only serves to illustrate the material difficulties raised by the Amendment. In other legal systems, the trend is to expand the use of the reasonableness standard, inter alia, against the background of the growing power of the executive branch in the modern state and the need to oversee its discretion (see and compare: Yoav Dotan, Administrative Guidelines 510-511 (1996) [Hebrew]). As opposed to that, In Israel – where, in comparative terms, the Government concentrates unprecedented power in its hands – the constituent authority chose to bar the possibility for examining the reasonableness of the decisions of the Government, the Prime Minister and the ministers in a sweeping, extreme and exceptional manner.

156.     The immediate significance of the Amendment – which absolutely denies an individual any possibility of raising arguments in regard to the reasonableness of decisions by the Government, the Prime Minister and the ministers, and the possibility of obtaining relief on the basis of such arguments – is a mortal blow to the right of access to the courts “whose existence is a necessary, vital condition for the existence of all the other basic rights” (Arpal, 629).

            The Government Respondents argue that our matter does not involve any violation of the right of access to the courts, inasmuch as that right concerns the possibility of obtaining relief in accordance with the law and the law has changed in this matter (para. 266 of their Affidavit in Response). This argument cannot be accepted. While the Amendment abolished the reasonableness standard as a ground for judicial review of the elected echelon, it does not free the Government and its members from the duty of reasonableness. In accordance with that duty, they must exercise discretion properly, while giving appropriate weight to all the relevant considerations. This is the case because every administrative authority exercises its powers as a public trustee (see: Eisenberg, 258-259; HCJ 5657/09 Movement for Quality Government v. Prime Minister [125] para. 39 (hereinafter: Djerbi)). In the course of the debates in the Constitution Committee, the Committee Chair, MK Rothman, the initiator of the Amendment, explained that this duty continues to hold in regard to the Government and the ministers (Transcript of meeting 121, 24-35). A similar position was presented in the proceedings before us in the Knesset’s arguments (para. 301 of the Knesset’s Affidavit in Response). Therefore, while the law applicable to the Government, the Prime Minister, and the ministers in this regard remains unchanged – the individual has been deprived of protection from governmental power, as he can no longer obtain relief for a violation of law, even if it is a severe violation of his important interests.

157.     In Arpal, it was noted that “barring the path to the court – whether directly or indirectly – and even only partially” harms “the democratic foundation of the state” (ibid., 629). This conclusion derives from the a priori purpose at the base of the principle of separation of powers – preventing the concentration of too much power in the hands of the regime and preventing the threat that would result to individuals in the state. The Amendment that is the subject of the petitions and the abolition of the reasonableness standard in all that relates to the elected echelon deprives the Court of a central oversight tool and grants significant, additional, and unlimited governance power to the Government, which already holds unprecedented power.

            Therefore, there is no alternative but to conclude that the Amendment strikes an extremely severe blow to the principle of separation of powers, which is one of the core characteristics of the State of Israel as a democratic state.

            D.4.     The harm to the rule of law

158.     The basic meaning of the principle of the rule of law in a democratic state is that “no person or body is above the law” (HCJ 1843/93 Pinhasi v. Knesset [126] 682). This principle does not only apply to individuals in the state: “all government authorities, including the Government itself, are subject to the law. No authority is above the law” (Eisenberg, 274). Judicial review of administrative actions has long served as a most central tool in defending the rule of law, and ensuring that the government acts lawfully is a core role of the court in a democratic society (see: Ressler, 462; Dotan, Judicial Review, 70; Rubinstein & Medina, 174).

            The law means the written law and the case law, including administrative law as developed in the case law over the years (AAA 867/11Tel-Aviv Yaffo Municipality v. A.B.C. Management and Maintenance, Ltd. [127] para. 28, per Justice Vogelman). The reasonableness standard is among the principles of administrative law, and it has been stated in regard to its application to all the administrative authorities as follows:

Like every decision by an administrative body, the decisions of the Government, its ministers and the Prime Minister are subject to judicial review in accordance with the standards of administrative law. “The government’s discretion, like the discretion of any minister within the government or any other authority, is constrained and guided by legal rules, and the Court is charged with upholding those rules. Among other things, the Government must exercise its powers based on relevant considerations, not on extraneous considerations. These must fall within the margin of reasonableness and proportionately” […] Any authority may make a decision that is not reasonable or that is not compatible with administrative law. The Government is no exception […] (Hanegbi 2003, 840).

159.     An in-depth examination of the Amendment shows that its consequences in the area of the rule of law are most severe. As noted, the Amendment did not in any way affect the duty of reasonableness that applies to the Government, the Prime Minister and to each of the ministers, whose duty to act reasonably directly derives from their being public trustees (Pinhasi, 461). The Government, its ministers and every other administrative authority is thus subject to the duty “to weigh all of the relevant considerations, to refrain from considerations that are not relevant; […] to grant the appropriate weight to each of the relevant considerations in accordance with the circumstances, and to arrive at a balanced decision by means of a proper evaluation of the various factors that will fall within the margin of reasonableness” (Djerbi, para. 39).

            However, following the Amendment, the duty of reasonableness is left unenforceable in regard to the Government and its members, as opposed to the other administrative authorities. In other words, the Amendment comprehensively establishes that the Court no longer holds jurisdiction to address the reasonableness of any decision adopted by the Government or any of its members, and accordingly, no longer holds jurisdiction to grant relief in those instances in which the decision adopted is unreasonable. This is so even though had the same decision been adopted by any other body or functionary in the executive branch – that is not part of the Government – the exemption would not apply, and the decision would be subject to judicial review on the ground of reasonableness.

160.     The result of the legal situation created as a result of the Amendment is that, in regard to the elected echelon, there is “law” (the duty of reasonableness) but no “judge” who can examine the observance of the duty because the Amendment abolishes the jurisdiction of anyone holding judicial authority to hear arguments in regard to the reasonableness of decisions by the Government and its members or to grant relief on the basis of that ground. The result is that the elected echelon, that effectively holds the most governmental power and that has at its disposal broad powers that have the potential for inflicting severe harm to individuals and to the public interest, is exempt from judicial review in all that relates to the reasonableness of its decisions, and it has already been held that “in the absence of a judge, the law itself will vanish with him”  (Arpal, 629). This situation constitutes a mortal blow to the principle of the rule of law, at both the formal and substantive levels. As was noted in Eisenberg:

The exalted position of the Government as the State’s executive authority (s. 1 of the Basic Law: The Government) cannot give it powers that the law does not confer upon it […]. Indeed, this is the strength of a democracy that respects the rule of law. This is the rule of law in its formal sense, whereby all government authorities, including the Government itself, are subject to the law. No authority is above the law; no authority may act unreasonably. This is also the substantive rule of law, according to which a balance must be made between the values, principles, and interests of the democratic society, while empowering the government to exercise discretion that properly balances the proper considerations (ibid., 274 – emphasis added).

161.     The harm to the rule of law is particularly severe in view of the creation of “vacuums” in judicial review (or “normative black holes” in the words of the Petitioners and the Attorney General). This harm derives from the fact that the Court has been deprived of the possibility of effectively examining decisions made in entire areas in which the protection of extremely important public interests is based almost exclusively upon an examination of the reasonableness of the decisions of the Government and its ministers.

162.     Thus, the reasonableness standard is the main tool granted to the Court for ensuring integrity in the civil service. This is expressed primarily in all that concerns improper appointments to public offices. It is the reasonableness standard that enables judicial review in extreme situations in which, even thought the appointment was made with authority and in accordance with the formal requirements, there was a severe defect in the discretion of the appointing body. Indeed, “the history of the public administration in Israel is burdened with cases, not one and not two, in which it was possible to prevent patently improper appointments only in the context of reasonableness, since on the ‘formal’ side it received a ‘passing’ grade (Hanegbi 2014, para. 2, per Deputy President Rubinstein; and see: ibid., para 2, per President Naor; for an up-to-date survey on the matter, see: Bell Yosef & Elad Gil, “The Use of the Reasonableness Standard in the Oversight of Public Appointments,” Tachlit – Institute for Israeli Public Policy (July 2, 2023) [Hebrew]). The contribution of the reasonableness standard to ethical integrity in the civil service is significant particularly given the fact that the other ground that might be relevant in this regard – the ground of extraneous considerations, which can serve for examining improper political appointments – involves significant evidentiary problems, and in practice, this claim is rarely accepted in regard to an appointment (see: Barak-Erez, Administrative Law, 658; Miriam Ben-Porat, “Political Appointments (Specific Problems),” Shamgar Volume, Part I, 91, 106-110 (2003); for a rare case of this type, see: HCJ 6458/96 Abu Krinat v. Minister of the Interior [128] 139-140).

163.     The importance of the reasonableness standard as it relates to decisions by the elected echelon is prominently expressed in appointments to public office of persons tainted by significant moral turpitude, regarding whom appropriate weight was not given to the principles of ethical integrity, good governance, and the public trust in governmental authorities. Thus, the appointment of a person who had been involved in extremely serious offenses to the post of Director General of a government agency was rescinded, inter alia, on the basis of reasonableness (Eisenberg; and see: Sarid). It has been held that the Prime Minister was required to dismiss ministers and deputy ministers against whom criminal charges were filed for corruption or who were convicted of  criminal acts a number of times (Deri; Pinhasi; Scheinfeld). The extension of the tenure of a senior office holder in the Ministry of Transportation was cancelled due to his conviction in disciplinary proceedings for offenses perpetrated in the course of his service (HCJ 7542/05 Portman v. Shitreet [129]). A decision by the Minister of Defense to promote an officer to the rank of general was canceled due to his admission of unbecoming conduct of a sexual nature and his conviction by a disciplinary tribunal (HCJ 1284/99 A v. Chief of General Staff [130]).

164.     In other situations, the reasonableness standard served as the legal basis for protecting against an inappropriate deviation from proper conduct in the public administration. Thus, for example, this Court invalidated an appointment made contrary to the recommendation of the appointments committee, noting that the impression was that the “dominant motive” for the appointment was “the close political connection” between the appointee and the responsible minister, as opposed to professional considerations of appropriateness to the office (Djerbi, para. 62, per Justice Procaccia). It has also been held that a situation in which a deputy minister wields the powers of the ministry in practice, while the Prime Minister is defined as the minister (“Deputy Minister with the status of a Minister”) is unreasonable in the extreme (HCJ 3132/15 Yesh Atid Party v. Prime Minister [130]). The case law has also noted that refraining from making appointments to vital positions while leaving the office unfilled over time causes severe harm to the public and may be deemed unreasonable (see: HCJ 268/13 Chai v. Exceptions Committee for Appointments to Senior Positions in the Prime Minister’s Office [132] para. 19; HCJ 1004/15 Movement for Governability and Democracy v. Minister of the Interior [133] paras. 15-16, per President Naor).

165.     The danger in denying the possibility of judicial intervention in extreme situations in which an appointment by the Government and its ministers is tainted by a serious defect is particularly great. This, in view of the nature of the appointments for which they are responsible. The Government is responsible for appointments to the most senior positions in the public service, among them, the Chief of the General Staff, the Director of the Israel Security Agency, the Police Commissioner, the Governor of the Bank of Israel, and the Commissioner of the Prison Service (sec. 3(c) of Basic Law: The Military; sec. 2(a) of the General Security Service Law, 5762-2002; sec. 8A of the Police Ordinance [New Version], 5731-1971 (hereinafter: Police Ordinance); sec. 6 of the Bank of Israel Law, 5770-2010; sec. 78 of the Prisons Ordinance [New Version], 5732-1971 (hereinafter: Prisons Ordinance)). In addition, sec. 23 of the Civil Service (Appointments) Law, 5719 – 1959 (hereinafter: Civil Service Law) allows the Government to decide which appointments require its approval, and this list currently includes, inter alia, the Director of the National Security Council, the Attorney General and Deputy Attorneys General, the State Attorney, the Director of the Atomic Energy Commission, the Director of National Economic Council, the Accountant General, the Budget Director, the Commissioner for Capital Markets, the Director of the Tax Authority, the Director of the Population and Immigration Authority, Israeli ambassadors throughout the world, and more (see: Second Appendix to the Civil Service Law). Along with that, there is a long list of senior appointments that fall under the authority of Government ministers (see, for example: sec. 18 of the Government Corporations Law, 5735-1975 (hereinafter: Government Corporations Law); sec. 8 of the Public Broadcasting Law, 5774-2014; sec. 3 of the Securities Law, 5728-1968; sec. 2 of the Planning and Building Law; sec. 7 of the Police Ordinance; sec. 79 of the Prison Service Law).

            Moreover, the Government and the ministers are often able to dismiss those senior officer holders, inter alia, on the basis of the general directive in sec. 14 of the Interpretation Law, 5741-1981, according to which: “Any empowerment to make an appointment implies empowerment to suspend the validity thereof or to revoke it, to dismiss the person appointed or to suspend him from office” (and see: art. 15 of the Order-in-Council; Zamir, “Administrative Authority,” 565, 656-657); HCJ 3884/16 A. v. Minister of Internal Security [134] para. 21). While there are, at present, appointments that require the recommendation of an advisory committee or a selection committee for which there are also established procedures for the termination of office, those requirement are primarily grounded in  Government decisions that can be revoked (see, inter alia: Decision 3839 of the 34^th Government “The Advisory Council for Appointments to Senior Positions and the Revocation of Government Decisions” (May 27, 2018); Decision 516 of the 9^th Government “Conditions for Appointment to Certain Offices” (Aug. 14, 1960); Decision 4892 of the 27^th Government “Appointments Commission headed by the Civil Service Commissioner – Amendment of Government Decision no. 516 of Aug. 14, 1960” (March 7, 1999); Decision 2274 of the 28^th Government “Report of the Public Committee for Examining Procedures for the Appointment of the Attorney General” (Aug. 20, 2000)). Even assuming that these decisions will remain in force, abolishing the reasonableness standard will block judicial review in situations in which appropriate weight is not given to the recommendations of the relevant bodies (as occurred, for example, in Djerbi).

166.     Thus, removing judicial oversight of the reasonableness of decisions by the Government and the ministers in regard to all the appointments under their authority will leave the public without any real protection in situations in which senior members of the civil service are appointed or dismissed solely for political reasons. As the Petitioners and the Attorney General emphasized, the consequences in this area are particularly severe in regard to those entrusted with enforcing the law – like the Attorney General, the State Attorney, and the Police Commissioner – where, in the absence of active judicial review, the question of their appointment and continued service becomes entirely dependent upon the graces of the elected echelon in a manner that might undermine their independence. This element of the independence of the law enforcement system is necessary to  fulfilling its role in the protection of the rule of law in the state, and it is also vital to the State of Israel’s ability to contend with legal challenges in the international arena (see: Amichai Cohen, “International Criminal Law,” International Law 473, 507 (Yael Ronen, ed., 4^th ed., 2023)). This last point in regard to the international consequences of the Amendment was the focus of the Numa Petition and is also mentioned in para. 307 of the Attorney General’s Affidavit in Response).

            In the course of the Committee’s debates, the subject of appointments and dismissals in the civil service was presented again and again as a critical issue by participants in the debates and by the Committee’s legal advisors in particular. In this regard, possibilities for establishing alternatives to judicial review were also raised (see: Transcript of meeting 120, 91-92; Transcript of meeting 121, 11-12). However, such mechanisms were not adopted in the end, and instead, a clarification was added to the end of the final draft according to which “decision” means “any decision, including in matters of appointments […]”. In the absence of any response to clear harm to the tools for protecting ethical integrity and good governance of the administration caused by the abolition of the reasonableness standard in regard appointments and dismissals of the most senior functionaries of the state, it would appear that the Amendment creates a real danger that the civil service, which “is intended to provide for the needs of the public in all aspects of life” (HCJ 8815/05 Landstein v. Spiegler [135] para. 8), will be fundamentally changed, and not for the better.

167.     An additional “normative vacuum” created as a result of the Amendment concerns the examination of the discretion of transition governments. In accordance with the principle of the continuity of the Government, anchored in sec. 30 of Basic Law: The Government, a Government that no longer enjoys the Knesset’s confidence continues to serve as the executive authority of the state for as long as another Government has not won the confidence of the Knesset. This is intended to prevent a “governmental vacuum” and to ensure government continuity (HCJ 5167/00 Weiss v. Prime Minister [136] 465 (hereinafter: Weiss); HCJ 7510/19 Or-Cohen v. Prime Minister [137] paras. 1 and 10 of my opinion). The primary concern that derives from this governmental situation is that such a Government might adopt decisions intended to garner political advantage in the upcoming elections or to tie the hands of the next Government (ibid., para. 10 of my opinion; and see: Shetreet, 520). In this regard, the case law has made it clear that although the powers of a transition government are no different from those of a “regular” Government, in term of discretion “the margin of reasonableness of a transition government is more narrow than that of a Government that serves by virtue of the confidence of the Knesset” (Kohelet Forum, para. 6 of my opinion; and see: Weiss, 470; HCJ 9202/08 Livnat v. Prime Minister [138] para. 4). Therefore, it is the duty of the transitional government to maintain a balance between moderation and restraint – which derive from the very fact of its being a Government that does not enjoy the confidence of the Knesset – and the need to ensure stability, continuity, and the proper functioning of the government institutions (Kohelet Forum, para. 7 of my opinion). Against this background, when the Court examined the decisions of transition governments and found a defect in the balance among the relevant considerations, it declared them void (see: HCJ 9577/02 Mafdal v. Speaker of the Knesset [139]; HCJ 4065/09 Cohen v. Minister of the Interior [140]; Lavi).

168.     Preventing the possibility of examining the reasonableness of the decisions of transition governments may result in harm of broad scope to the public interest, as it would allow the Government and the ministers acting as a transition government to more easily exploit the powers and resources at their disposal during the elections period for the purpose of unnecessary appointments or in order to gain an unfair advantage in anticipation of the elections, for example, by means of what is referred to an “elections economy” (see and compare: Lavi, para. 1, per Justice Sohlberg; and see the statement of Advocate Blay in the Transcript of meeting 121, 11). According to the Knesset, it would be possible to contend with the “vacuum” created in the rules for a transition government by developing the extraneous considerations ground (see: para. 316(d) of the Knesset’s Affidavit in Response). However, in order to provide effective protection of the public interest in this context, it would be necessary to completely change the evidentiary requirements for proving the claim, in a manner that would change its character. Furthermore, contrary to the Knesset’s position, the principle of equality in elections anchored in sec. 4 of Basic Law: The Knesset cannot serve as a real alternative to examining the reasonableness of a decision. The Knesset refers, in this regard, to Bergman, but that and other similar matters did not treat of the day-to-day decisions made by a transition government, but rather with situations in which the equality in the conditions for the competing parties was clearly violated, for example, in regard to aspects of funding the elections (see: Derech Eretz; HCJ 141/82; HCJ 142/89 Laor Movement v. Speaker of the Knesset [141]; HCJ 2060/91 Cohen v. Shilansky [142] ). Therefore, in the existing legal situation, the Amendment leads, inter alia, to clear harm to the rule of law at a critical juncture prior to the elections, in a manner that might affect the rules of the democratic game themselves.

169.     In addition to the areas of elections and the rules for transition governments, there are other public interests that cannot be protected against serious violations by the elected echelon in the absence of the reasonableness standard. One example of this, which was presented in the amicus brief filed by the Adam Teva V’Din Association, is the environmental impact of decisions by the Government and its ministers.  Although these effects so not necessarily cause direct harm to a particular individual, they concern public health and quality of life (for example, in cases of environmental pollution) even for future generations (see: HCJ 4128/02 Adam Teva V’Din v. Prime Minister [143] 512-513). Decisions “to pave roads, build cities, develop industry and provide the means for protecting the public and its security” (ibid., 513) can lead to a head-on clash with protection of the environment. In this regard, the reasonableness standard has more than once made it possible for the Court to intervene when it found that appropriate weight was not assigned to considerations related to environmental protection in decisions adopted by the Government and its ministers (see, e.g.: HCJ 9409/05 Adam Teva V’Din v. National Planning and Building Committee [144]; HCJ 1756/10 Holon Municipality v. Minister of the Interior [145]). Without the reasonableness standard, the courts will have difficulty granting relief in cases where decisions by the elected echelon may cause irreversible harm to environmental values.

170.     From all the above, we see that in addition to the difficulty of the existence of law without a judge, abolishing judicial review on the basis of reasonableness causes clear, immediate harm in a range of areas in which the lawfulness of government activities is examined from the perspective of that standard. The starting point is that “access to the courts is the cornerstone of the rule of law” (Ressler, 462). Therefore, the case law has narrowly construed regular statutory provisions that placed restrictions upon the jurisdiction of the courts to examine certain administrative decisions, and has held, inter alia, that in all that regards the jurisdiction of the High Court of Justice, such provisions must be examined in light of the provisions of sec. 15 of Basic Law: The Judiciary (see: National Insurance Institute, 451-452; Herut, 756). Abolishing judicial review of the reasonableness of decisions by the Government, the Prime Minister, and the ministers has now been established in the Basic Law itself, and expressly so. But one cannot ignore the far-reaching significance of the Amendment as described above, which derives from its sweeping language and its application to all the decisions of the elected echelon and all the courts, including this Court sitting as Hight Court of Justice. This is an unprecedented step that clearly goes beyond every provision that limited the jurisdiction of the Court in the past, and it facially contradicts the principle of the rule of law for all the reasons laid out above.

171.     In this regard, the Government Respondents referred to other legal systems, noting that the case law in Great Britain and the United States has recognized the possibility of revoking the jurisdiction of the courts through legislation (for a survey in this regard, upon which the Government Respondents relied, see: Dotan, Judicial Review, 233-236). In view of the significant differences, which I addressed above, between our system and other systems in all that regards the system of checks and balances on governmental power, there is an inherent problem in this comparison. Moreover, the Government Respondents did not present even one example of a statutory limitation in regard to the activities of the most senior elements of the executive branch that is of such exceptionally broad scope as those deriving from the amendment that is the subject of the petitions (on the exceptional nature of the limitation established in the Amendment from a comparative law perspective, also see: the Preparatory Document of June 23, 2023, p. 6). One of the examples cited by the Government Respondents in this regard is the recent British judgment in R v Upper Tribunal (Immigration and Asylum Chamber) [160], which addressed a law that removed the jurisdiction of the court to conduct judicial review of an administrative tribunal, including both the trial and appeals court (see: Tribunals, Courts and Enforcement Act 2007, c. 2, § 11A). That judgment treated of the removal of the possibility for a third examination of administrative decisions in specific areas, after two quasi-judicial instances had addressed them. As opposed to that, in our matter, the Amendment establishes that the reasonableness of all decisions of the Government, the Prime Minister, and the ministers shall not be subject to judicial review of any sort.

172.     From the data presented by the Knesset, we learn that over the last decade the High Court of Justice has handed down 44 judgments in which petitions were granted (in whole or in part) on the basis of the reasonableness standard, of them, 16 judgments concerned decisions by the Government or one of its ministers. This data shows that the scope of intervention on the basis of the reasonableness standard is not great (and see: Zamir, Administrative Power, 3604). This is primarily attributable to the consistent position of the case law that “the court does not examine whether it was possible to make a more correct, more proper, more efficient, or better decision. As long as the decision that was chosen falls within the margin of reasonableness, there is no ground for the intervention of the court” (Emunah, 511; and see: HCJ 3758/17 Histadrut v. Courts Administration [146] para. 35, per Justice Danziger; HCJ 4838/17 Unipharm, Ltd. v. Natural Gas Authority [147] para. 32). It has similarly been explained on numerous occasions that one must show extreme unreasonableness in order for the Court to be willing to intervene in the discretion of the authorized body (see, e.g.: HCJ 4374/15 Movement for Quality Government v. Prime Minister [148] para. 46, per Deputy President Rubinstein; HCJ 6637/16 Levenstein Levi v. State of Israel [149] para. 32, per Justice Vogelman). This is all the more so the approach where Government and ministerial decisions are concerned. This is so given the rule in regard to the broad margin of reasonableness in regard to decisions made by authorities “of high status in the governmental hierarchy” (HCJ 4999/03, para. 18 of my opinion). This rule accordingly leads to limiting the scope of judicial review in their regard.

173.     Nevertheless, although the number of a cases in which the Court ultimately intervened in administrative decisions on the basis of the reasonableness standard it not large, that is not a reason for underestimating the severity of the consequences of the Amendment. First, the data illustrates that despite the Court’s restraint in regard to governmental and ministerial decisions, those decisions constitute more than a third of the decisions voided by the Court on the basis of the reasonableness standard over the period surveyed. Second, one cannot evaluate the importance and the influence of the reasonableness standard only on the basis of the cases that came before the Court. As President Naor emphasized:

The importance of reasonableness is in the deterrence of the government authorities. An authority that knows that the Court may intervene in its actions if it acts extremely unreasonably, will examine the reasonableness of its decision before adopting it (Hanegbi, 2014, para. 2; and see: Barak-Erez, Administrative Law, 769).

            The Attorney General also noted this in her Affidavit in Response, in which she pointed out that judicial review was not required in regard to the overwhelming majority of governmental decisions, inter alia, because the legal advisors already emphasize the need to meet the duty of reasonableness under the circumstances in the decision-making process. However, the Attorney General was of the opinion that “from the moment that such decisions will no longer be subject to effective judicial review, and the person harmed by the decision will no longer have a judicial remedy, the Attorney General’s opinion in regard to that decision will naturally be of limited, if any, influence” (ibid., para. 283). Indeed, despite the fact that the duty to act reasonably still applies to the elected echelon, denying the possibility of judicial review of the reasonableness of Government and ministerial decisions bears direct, severe consequences for the stages of developing and reaching decisions inasmuch as “a government that knows in advance that it is not subject to judicial review might not give reign to the law and might cause its breach” (HCJ 217/80 Segal v. Minister of the Interior [150].

174.     Lastly, it should be emphasized that the future consequences of the Amendment may be far more severe, given that it does not comprise any restriction upon the transfer of powers currently held by other agencies of the executive to the Government and the ministers. Section 34 of Basic Law: The Government establishes: “A Minister, who is in charge of implementing a law, is entitled to assume any power, with the exception of powers of a judicial nature, which is conferred by that law upon a civil servant, unless another intention is implied in the law. The Minister is entitled to act as stated with regards to a particular matter, or a specific period”. In other words, nothing can prevent a minister from assuming the power to make the most harmful decisions, in terms of their reasonableness, in order to make them immune from judicial review. In its Affidavit in Response, the Knesset proposed that the Court examine whether there was an abuse of the authority to assume the power (ibid., para. 316(e)), but given that the assumption of power would be lawful, and in view of the difficulty in proving that the assumption of power was done for extraneous considerations, it would seem that the main ground that could be employed for examining the minister’s discretion would actually be that of reasonableness. In any case, as we learn from MK Rothman’s statement in the course of the Committee’s debates, the ability of a minister to assume powers is not a “bug” in the Amendment, but rather one of its features:

Advocate Blay: There is a fear that the system of incentives will be such that when there is a decision regarding which there is a concern about its reasonableness, the minister will then make that decision in order to grant it immunity.

MK Rothman: Excellent. No, not in order to grant it immunity. Excuse me, that is a statement that I do not accept. Not in order to grant it immunity. When there is a decision that the minister thinks must be adopted because it is reasonable, because it is a decision that he sees as appropriate and correct that should be accepted in this specific case, then he will do it (Transcript of meeting 125, p. 27).

            The Government Respondents also explain that in their view “if a minister assumed the power of another body […] then it is a decision that the minister adopted in the scope of his authority, and it would not be subject to judicial review on the ground of reasonableness” (para. 46 of their Supplemental Brief; and see para. 28 of the Knesset’s Supplemental Brief). They further argue that “if a minister established a policy in the scope of his authority, an individual decision made as a direct result of that policy is not subject to judicial review on the ground of reasonableness” (ibid.). It should also be noted that it is possible to amend the law in a manner that would expand the powers held by ministers (as an example in this regard, the Attorney General pointed to the Police Ordinance (Amendment no. 37) Law, 5783-2022, which recently expanded the powers of the Minister of National Security, regarding which there is a pending proceeding before this Court – HCJ 8987/22 Movement for Quality Government in Israel v. Knesset). All the above serves to demonstrate the broad scope of the influence of the Amendment, even beyond the specific powers currently granted by law to the Government and the ministers.

175.     Judicial review of the decisions of governmental authorities, among them the Government and its ministers, is a “cornerstone of a democracy which upholds the rule of law” (Hanegbi 2003, 834-835). Examining the significance of the Amendment in depth shows that denying judicial review in regard to the reasonableness of Government and ministerial decisions leads to destructive, harmful consequences at the very heart of the rule of law. We are concerned with a fatal, multi-dimensional blow: in practice, the Amendment leads to placing the Government and its ministers “above the law”; it creates judicial review “vacuums” in regard to important public interests like good governance and the integrity of the civil service, as well as in regard to the conduct of a transition government during the elections period; and it opens the door to the transfer of broad powers to the ministers in order to shield decisions from judicial review.

E.         Amendment no. 3 to Basic Law: The Judiciary constitutes a Deviation from Constituent Authority

176.     Amendment no. 3 to Basic Law: The Judiciary is an extreme, exceptional amendment by any criterion. It has no parallel in our constitutional history and it strikes head-on at the heart of two of the core characteristics of the State of Israel as a democratic state. The words of Justice Rivlin, written some two decades ago, are appropriate here:

The rule of law, the separation of powers, the checks and balances that accompany this separation, the power of judicial review, and the other mechanisms of democracy – form the central pillars of a democratic society. They constitute the essential conditions for the preservation of human rights. They form the nucleus of any democratic society that strives to promote human welfare.

In light of the above, it has been stated on more than one occasion that this Court is charged with overseeing the legality and reasonableness of the activities of the State […] The Court’s powers of judgment and judicial review of government authorities constitute “an integral part of a truly democratic society, and anyone undermining this is liable to topple one of the pillars of the state” […] (Hanegbi 2003, 835).

177.     Denying the reasonableness standard in regard to decisions by the elected echelon significantly increases the power concentrated in the hands of the Government and poses a real threat to the individual, whose path to the Court for the purpose of obtaining relief is barred in a variety of situations in which he may suffer serious harm to his important interests as a result of governmental actions. Along with this, the Amendment gives rise to a situation in which, although the duty of reasonableness continues to apply to all of the administrative authorities, the most powerful elements of the executive branch are effectively exempt from that duty in the absence of any possibility of enforcing it upon them. This situation in which “there is law but no judge” leaves entire areas of important decisions without effective judicial review, it prevents the protection of public interests like ethical conduct and good governance, it may lead to a fundamental change of the civil service in the state, to severe harm to the independence of the law enforcement system, and to the exploitation of governmental resources for political gain during elections.

178.     The reasonableness standard has been developed in the case law since the founding of the state and became grounded as “a central and critical tool for exercising judicial review of the administration” (Merchants Association, para. 37, per Justice Barak-Erez). In view of the severe consequences deriving from the comprehensive exemption from judicial review on the ground of reasonableness granted to the elected echelon, I am of the opinion that the Amendment in which that exemption was established stands in facial contradiction to the existing constitutional foundation.

            Although it only abolishes one ground among the grounds for administrative review in regard to the elected echelon, the specific amendment before us grants, by its extreme language, absolute immunity from judicial review of the reasonableness of all the decisions of the elected echelon, which holds the most governmental power. The Amendment does not permit an individual to turn to the Court to present arguments in regard to the reasonableness of those decisions, and it constitutes a sweeping removal of oversight and of necessary restrictions of the Government and its ministers, without adopting any other mechanisms to compensate for that. It is possible that such a denial of one ground for review in regard to the elected echelon in another legal system would lead to a more moderate infringement of the separation of powers and the rule of law. But an examination of the Amendment against the background of Israel’s constitutional reality shows that such a significant limiting of judicial review in regard to the elected echelon in that reality undermines the foundations of the already frail system of the checks and balances.

179.     That being so, I have reached the conclusion that Amendment no. 3 to Basic Law: The Judiciary constitutes an edge case whose enactment constitutes a deviation from the Knesset’s constituent authority. In view of this conclusion, there is no reason to address the arguments raised by the Petitioners and the Attorney General in regard to the overall plan for the reform of the legal system, which is composed of other initiatives that have not yet been approved by the Knesset. The Amendment before us itself contradicts foundational principles grounding the democratic character of our system, given the magnitude of its harm to the principles of the rule of law and the separation of powers.

F.         The Remedy for the Knesset’s Deviation from Constituent Authority

180.     The Petitioners and the Attorney General argue that in view of the Knesset’s deviation from its constituent authority, the Amendment should be declared void.

            Is voiding the Amendment the remedy required by the situation before us? Would it not be possible to suffice with a more moderate constitutional remedy (compare: Arad-Pinkas, paras. 32-38, per Justice Vogelman)?

181.     The case law and the literature have recognized situations in which it was possible to suffice with the remedy of severance by physically or conceptually separating the valid part from the invalid part that must be voided, to the extent that it is possible given the purpose of the law and the legislative tapestry (Arad Pinkas, para. 37 of my opinion; Eitan, para. 81, Justice Vogelman; Aharon Barak, “On the Theory of Constitutional Remedies,” 20 Mishpat V’asakim 301, 350-353 (2017) [Hebrew]). The possibility of granting such relief was not raised by the parties, and I believe it was for good reason. Physical textual severance is not relevant to the matter in view of the Amendment’s general, comprehensive language. Conceptual severance – for example, by way of not applying the Amendment to certain decisions of the elected echelon – is also inappropriate here as the wording of the Amendment does not allow for a straightforward, clear distinction among the situations to which the Amendment would apply and those that would be removed from its compass. That being the case, applying conceptual severance would effectively require a complex, detailed process of rewriting the constitutional text de novo by the Court. It has already been held in this regard that the Court is not meant “to determine the details of the legislative arrangement that will replace the unconstitutional act of legislation. This is the responsibility of the Knesset” (HCJ 2605/05 Academic Center of Law and Business v. Minister of Finance [151] 639; and see: HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [152] 413-414). This is a fortiori the case where a Basic Law is concerned. It is not the role of the Court to enact a new amendment to the Basic Law to replace the extreme, exceptional amendment that the constituent authority chose to enact.

182.     Another possibility raised by some of the Petitioners is the remedy of postponed application, which was noted as an alternative remedy on the basis of the doctrine of abuse of constituent power. Given that the Knesset’s deviation from its constituent authority is to be found in the content of the arrangement itself and is not contingent upon the date of its entry into force, this remedy is insufficient to repair the Amendment’s severe harm to the nuclear characteristics of our system.

183.     In the absence of another remedy that might provide a response to the unprecedented harm to the nuclear characteristics of the State of Israel as a democratic state at a result of Amendment no. 3 to Basic Law: The Judiciary, I am of the opinion that there is no recourse but to declare the Amendment void.

            G.        Additional Defects raised by the petitions

184.     In view of my conclusion according to which the Amendment should be declared void by reason of the Knesset’s deviation from the boundaries of its constituent authority, I can, as noted, suffice with but a few comments upon the arguments raised by the Petitioners and the Attorney General in regard to other defects in the Amendment.

            G.1.     The Claim that the Amendment constitutes an abuse of constituent power

185.     One of the arguments raised in the Petitions before us is that the Amendment does not satisfy the supplementary tests established in Shafir for identifying a constitutional norm – particularly the test of generality and that of compatibility to the constitutional fabric – and it should therefore be held that it was enacted through an abuse of the constituent power. The Attorney General is also of the opinion that the Amendment constitutes an abuse of constituent power and does not satisfy the supplementary tests established in this regard in Shafir.

186.     The Amendment before us does indeed raise serious questions in terms of satisfying the supplementary tests for identifying a constitutional norm. The primary difficulty concerns the test of compatibility with the constitutional fabric. This test is based upon the presumption that “as opposed to ‘regular’ legislation intended to address everyday matters, basic legislation is intended to address matters at the core of the constitutional regime of the State of Israel” (Shafir, para. 41 of my opinion).

187.     Basic Law: The Judiciary, to which sec. 15(d1) was added by Amendment no. 3, establishes a list of general constitutional principles in regard to the operation of the courts. The Explanatory Notes to the Basic Law bill already explained that it only establishes a general framework, and that concrete provisions as to the exercise of the authority of the Supreme Court and the other courts will be established in supplementary laws (Explanatory Notes to Basic Law: The Judiciary Bill, Bills 5738, 236; Shafir, para. 10, per Deputy President Hendel). Indeed, a few months after enacting Basic Law: The Judiciary, the current version of the Courts Law [Consolidated Version], 5744-1984, was enacted (hereinafter: Courts Law), which establishes a number of implementary provisions in regard to the jurisdiction and activities of the courts.

            This conception of the general nature of the arrangement established in Basic Law: The Judiciary is clearly reflected in its provisions. Thus, sec. 15 of the Basic Law arranges the general jurisdiction of the Supreme Court and expressly states that “other powers of the Supreme Court shall be prescribed by law” (sec. 15(e)). Among the general matters of jurisdiction arranged in the Basic Law, sec. 1(c) anchors the jurisdiction in principle of the Supreme Court sitting as High Court of Justice “to provide relief for the sake of justice”, and sec. 15(d) details the broad categories in which the High Court of Justice may grant orders – for example, to issue orders to “state authorities, to local authorities, to their officials, and to other bodies and persons holding public office under the law” (sec. 15(d)(2)). Section 15(d) does not treat of the details of the legal causes of action that might justify judicial intervention, and it also expressly establishes that nothing therein detracts from the general jurisdiction of the High Court of Justice as stated in sec. 15(c). In other words, even if a particular case does not fall within one of the categories listed in sec. 15(d), this Court sitting as High Court of Justice has the general jurisdiction to grant relief for the sake of justice in such cases where it sees a need (see: Barak-Erez, Procedural Administrative Law, 53). As for other judicial instances, the Basic Law establishes that the “establishment, powers, seat and jurisdiction areas of district courts, magistrates' courts, and other courts shall be in accordance with the law” (sec. 16).

188.     Against the background of the general provisions of Basic Law: The Judiciary, it is difficult to harmonize the Amendment – in term of its character and level of abstractness – with the Basic Law that it amends. In practice, sec. 15(d1), which was added by the Amendment, establishes a specific arrangement in regard to the abolition of a specific ground of judicial review in the field of administrative law. This section is inconsistent with the internal logic of the general arrangement established under sec. 15 of the Basic Law. Thus, while sec. 15 treats of the general jurisdiction of the Supreme Court, the Amendment concerns the narrowing of the jurisdiction of all the courts (“a holder of judicial authority under law”) in regard to judicial review.

189.     The exceptional nature of the Amendment – which abolishes a specific administrative standard – in the framework of Basic Law: The Judiciary is particularly remarkable given that the rules of administrative law, including the duty of reasonableness to which the Amendment refers, are not set out in statutory law, let alone in basic legislation. This problem concerning the exceptionality of the Amendment was addressed by the Committee’s legal advisor, Advocate Blay, in the course of the Committee’s debates on the bill (Transcript of meeting 105, p. 85). The Deputy Attorney General, Advocate Limon, also addressed the exceptionality of the amendment to Basic Law: The Judiciary:

Had the bill actually sought to treat of the complexity of the reasonableness standard, and there is such complexity, as I will explain further on – it would first address all of the definitions of the reasonableness duty in administrative law, and not do so by means of amending Basic Law: The Judiciary. But the bill does not refer in any way to the basic principle – the grounding of the reasonableness standard. Instead, the bill comprises only one element, with the most serious consequences – the absolute barring of judicial review of unreasonable decisions, based upon the identity of the decision maker, in regard to the most important decisions made by the highest level of government (Transcript of meeting 108, p. 10).

190.     An examination of the general constitutional fabric also makes it difficult to harmonize the Amendment with other arrangements in Israeli law. Thus, we were not presented with a similar statutory provision that treats of the abolition of a specific cause of action or ground for administrative review, as opposed to provisions that restrict or delimit judicial oversight, which are generally established in primary legislation (see, e.g.: sec. 16(c) of the Petroleum Law, 5712-1952; sec. 11(e) of the Victims of Hostile Action (Pensions) Law, 5770-1970; sec. 59 XXXI of the Government Companies Law, 5735-1975; sec. 5B of the Defense Service Law, 5746-1986).

191.     In my opinion, the complex of problems noted above raises a serious concern that the decision to include the Amendment under the title “Basic Law” was intended for no other reason that to immunize it from the judicial review that applies to “regular” legislation (see and compare: Porat, 914; Herut, 756; HCJ 2208/02 Salameh v. Minister of the Interior [153] 953; Barak-Erez, Procedural Administrative Law, 125).

192.     An additional problem raised in our matter concerns the generality test. In Shafir, the importance of the generality requirement was noted in regard to Basic Laws, whose character is meant to reflect broad societal consensus as opposed to the particular interests of some majority or another (see: para. 40 of my opinion; and see: Bendor, “Legal Status”, 164). It was further made clear in that matter that a personal norm may be directed at a specific person as well as an institutional “persona” like the Knesset or a particular Government (Shafir, para. 40 of my opinion; Academic Center, para. 6, per Justice Hendel). It has also been held that the immediate entry into force of a norm does not absolutely rule out its identification as a constitutional norm, but it may sometimes raise a problem as to its generality (Rotation Government, paras. 14-15 of my opinion, and para. 5 per Justice Baron; and see: Scheinfeld, para. 42 of my opinion, and paras. 48-49 per Justice Barak-Erez).

            In the matter before us, one cannot ignore the fact that the Amendment, which goes into immediate force, abolished judicial review on the basis of reasonableness only in regard to decisions by the Government and its ministers, while the other administrative authorities continue to be subject to it. Thus, the Amendment exclusively benefits the Government and its ministers. It grants them an “exemption” from judicial oversight in the circumstances to which it applies, and immediately strengthens their governmental power. This problem is sharpened given that the Government – which, as noted, is the sole beneficiary of the Amendment – is the one that, in practice, worked to promote the Amendment and approve it by means of the coalition majority that it enjoys in the Knesset. Under these circumstances, I am of the opinion that the unique characteristics of the arrangement, among them the nature of the arrangement concerning the removal of the oversight mechanisms only as they apply to the Government and the ministers and its immediate application to the 37^th Government – which is the “animating spirit” behind the Amendment – can, indeed, raise a concern that it is intended to serve the narrow interests of a particular political majority in a manner that would allow it to buttress its governmental power. This, as opposed to a similar amendment that would be advanced behind a “veil of ignorance” without being able to know to which Government it grants the “exemption” from judicial review on the ground of reasonableness.

            However, and as noted above, I do not see any need to make a definitive ruling on the question of whether the problems noted above rise to the level of an abuse of constituent power in the present matter. This, in view of the conclusion I reached in regard to voiding the Amendment on other grounds.

            G.2.     Arguments concerning defects in the legislative process of the Amendment

193.     The Petitioners argue at length in regard to defects in the legislative process of the Amendment. In this regard, it is argued, inter alia, that the manner in which the debates were conducted in the Constitution Committee and the short period in which the Amendment was advanced hindered the possibility for members of the Knesset to participate substantially in its legislative process. They additionally complained of the Amendment’s being advanced as a Constitutional Committee bill under sec. 80 of the Knesset Rules which, they argue, was intended to circumvent the limitations that apply to private member’s and government bills.

194.     In view of the elevated status of Basic Laws in our system, the case law has emphasized that “the constituent authority must respect the norms that it creates wearing this hat, and ensure that changes in the rules of the game that define the constitution be carried out in a proper proceeding, with transparency and accountability to the public” (Academic Center, para. 5, per Justice Hendel). And in the same vein, it was noted in Scheinfeld that “it would be better that amendments to Basic Laws not be advanced hastily and on a fast track” (Scheinfeld, para. 45 of my opinion).

            The manner in which the enactment of the Amendment was managed is not problem free in this regard, to put it mildly. As we see from surveying the proceedings in the Knesset, the legislative process took only about a month, despite the dramatic consequences and the strong objections raised in its regard. The very accelerated legislative process was expressed, inter alia, in the use that was made of the objections procedure and of sec. 98 of the Knesset Rules in order to establish special debate procedures and to shorten the timetable for approving the Amendment. Reading the transcripts of the debates shows that the Committee’s debates were conducted in a harsh, adversarial manner, and in the final analysis, the various proposals raised in the course of the debates, both by members of the Committee and by the professionals who participated in the legislative process, received no expression whatsoever in the Amendment Bill presented for a second and third reading: the bill remained virtually unchanged in comparison to the parallel section that appeared in the draft of the Basic Law bill that MK Rothman submitted on January 17, 2023. In its Affidavit in Response, the Knesset also noted the problems that arose in the legislative process and noted that “it would have been possible to adopt a better process than the one implemented in practice” (ibid., para. 224). The Knesset’s attorney fittingly noted this in the hearing of the Petitions (p. 6 of the Transcript).

195.     Despite tall he problems noted, I am of the opinion that, as far as concerns the principle of participation – which establishes the right of the members of the Knesset to take part in the legislative process – the high threshold established for intervention in this regard, according to which one must show that the defect goes to the heart of the process and that  the “Knesset members were not afforded the possibility to scrutinize and consider the proposed bill, even if only in the most basic sense” (Quintinsky, para. 79, per Justice Sohlberg); see and compare: HCJ 3234/15 Yesh Atid Party v. Speaker of the Knesset [154] para. 12) was not crossed.

196.     The additional arguments raised by the Petitioners concerning the use of the provisions of sec. 80 of the Knesset Rules raise more complex questions. Section 74(b) of the Knesset Rules establishes three paths for submitting a bill to the Knesset: a private member’s bill submitted by a member of Knesset who is not a minister or a deputy minister; a government bill; a bill on behalf of a Knesset committee. The legislative procedure for a bill on behalf of a committee is exceptional, and somewhat lenient in comparison to the legislative procedure for bills in the other two legislative paths. This is the case because bills presented on behalf of a committee are exempt from the preliminary requirements that apply to a private member’s bill prior to the first-reading stage, among them, holding a preliminary reading in the plenum and the requirement that the bill be laid on the table 45 days prior to the preliminary reading (secs. 75(e) and 76 of the Knesset Rules). In addition, the procedure for preparing a bill under the committee path is not subject to the provisions that apply to a government bill, such as the Attorney General’s Directives that require preparatory administrative staff planning by the relevant ministry, preparation of a memorandum and its publication to the public, and approval of the bill by the Ministerial Committee for Legislation (Directives of the Attorney General 2.3.005 “Treatment of Government Bills” (March 5, 2018).

197.     Therefore, there would seem to be good reason for sec. 80 of the Knesset Rules limiting the use of this abridged path to certain committees – the House Committee, the Constitution Committee, and the State Control Committee – and to a defined list of subjects, and this on the condition that the subject of the bill be within the sphere of the committee’s competence:

80. (a) The House Committee, the Constitution, Law and Justice Committee, and the State Control Committee are entitled to initiate bills in the spheres of their competence as elaborated in these Rules of Procedure, on the following topics, and prepare them for the first reading: Basic Laws, matters that are required due to an amendment of a Basic Law, and are proposed side by side with it, the Knesset, Members of the Knesset, the elections to the Knesset, political parties, party financing, and the State Comptroller.    

(b) Once the Committee has prepared a bill for the First Reading, the Secretary General of the Knesset shall provide for its publication in the Official Gazette – Knesset Bills, together with explanatory notes.

198.     The possibility of a Knesset committee submitting a bill – although it was actually put into practice in the first early years of the Knesset – was first arranged in a decision of the House Committee of Nov. 24, 1980 (Transcript of meeting 281 of the House Committee of the 9^th Knesset, 2 (Nov. 24, 1980) (hereinafter: the House Committee’s Decision). In 2011, the Knesset Rules were amended to add sec. 80 that established an arrangement materially similar to the one established by the House Committee. One of the changes included in the section, as opposed to House Committee’s Decision, was to limit the possibility of submitting bills on behalf of a committee to three specific committees and to the spheres of their competence as elaborated in the Rules of Procedure. Examining the House Committee’s debates on the subject reveals that restricting the use of the path for bills on behalf of a Knesset committee derived, inter alia, from the concern that committees might employ this path in order to skip the preliminary stages and go directly to a first reading (Transcript of meeting 161 of the Knesset House Committee, the 18^th Knesset, 55-56, 60 (March 1, 2011).

199.     It would appear that, over the years, relatively little use was made of the path for submitting bills on behalf of a committee. In regard to Basic Laws, the data published on the Knesset website shows that since the establishment of the state, 26 bills initiated in bills on behalf of a committee for Basic Laws and for amending Basic Laws were approved in a third reading. An examination of the subjects addressed by those bills shows that, as a rule, they treated of subjects related in some way to the Knesset, for example: work procedures of the Knesset and its members, elections, and the Budget Law (see, e.g.: Basic Law: The Knesset (Amendment no. 12) S.H. 5771 90, which concerned the candidacy of a Member of Knesset who had left his faction to stand for election in the following Knesset; and Basic Law: The Knesset (Amendment no. 24), S.H. 5751 186, which comprises various provisions in regard to the Speaker of the Knesset and the Deputy Speaker). This is the case but for three prominent exceptions: the first is Basic Law: The Government (Amendment no. 6) S.H. 5757 114 – which treats of the capacity of a person who holds an additional citizenship to serve as a minister; the second is Basic Law: The Judiciary (Amendment no. 2), S.H. 5762 598 – which established that the Ombudsman of Judges would be included in the list of people who could recommend the termination of the tenure of a judge to the Judicial Selection Committee; and the third is the Amendment that is the subject of the present petitions. However, in the first two matters, as with the overwhelming majority of Basic Law bills that were adopted and that treated of matters of the Knesset, the bills were approved by a broad consensus and without significant opposition, which is not the case in the matter before us.

200.     The method by which sec. 80 was employed over the years thus shows that Basic Law bills on behalf of the Constitution Committee were generally submitted when at least one of the following conditions was met: the first – the bill concerned matters of the Knesset (such as elections, party financing, the budget, etc.); the second – the bill was advanced with broad support.

            This method was also addressed by the legal advisors of the Committee and of the Knesset in regard to the broader category of all the bills on behalf of a committee (and not just Basic Law bills). Thus, already in the Preparatory Document submitted by the Committee’s legal advisors on January 16, 2023, which concerned the advancing of a Basic Law bill on the subject of government legal advisors, it was explained that bills on behalf of a committee constituted a relatively rare “legislative path” that “was reserved, in the overwhelming majority of cases, for subjects that were not controversial or to subjects tightly connected to the Knesset and its activities”. The Knesset Legal Advisor, Advocate Afik, also pointed out that:

The significance of a bill on behalf of a committee is, in effect, skipping over a process of preparation for the first reading, with all the significance that entails, and in effect, it makes the bill coming from the committee similar to a government bill.

[…]

When we look at the bills on behalf of a committee that were proposed here over the years, it can be said: A – that were not many, it is not a process that the Knesset usually employs, that the high road in the Knesset is usually a private member’s bill. Bills on behalf of a committee are really, as noted here, for times when there was a kind of consensus in the Knesset and they wanted to adopt it by means of a bill on behalf of a committee, which was appropriate to the subjects that appeared in the Knesset Rules in regard to that matter which the Knesset addresses and wants to find a solution for them (Transcript of meeting 7, p. 31)

201.     In Advocate Afik’s memorandum of January 25, 2023, she concluded that it was possible to advance the Basic Law: Strengthening the Separation of Powers Bill as a bill on behalf of the committee. That bill concerned changing the composition of the Judicial Selection Committee, limiting the judicial review of Basic Laws and primary legislation, and abolishing the reasonableness standard. This was the case because, in her opinion, that bill concerned “constitutional arrangements that arrange the relationship of the branches, and specifically, the relationship of the Knesset and the judiciary”. A few months later, against the background of the start of the debate on the Amendment Bill that is the subject of the petitions, Advocate Afik again referred to her memorandum of January 25, 2023 in regard to the Basic Law: Strengthening the Separation of Powers Bill, and noted that “we now have on the Constitution Committee’s agenda the last element of that Basic Law bill – limiting the use of the reasonableness standard” (see: para. 4 of Advocate Afik’s letter in response to MK Kariv of July 2, 2023, which was appended as R/17 to the Knesset’s Affidavit in Response).

202.     In my opinion, Advocate Afik’s position in regard to the appropriateness of the Amendment Bill to the path of a bill on behalf of a committee raises a problem. As can be seen from the survey presented above, advancing the Amendment Bill that is the subject of the petitions as a bill on behalf of a committee constitutes a significant deviation from the Knesset’s practice as established over the years in regard to the accepted use of the path established in sec. 80 of the Knesset Rules. Thus, as opposed to the manner in which the section was employed by the Knesset over the years, the amendment before us was clearly not advanced with a broad consensus, and it also does not treat of matters of the Knesset but rather of the scope of judicial review over the actions of the Government.

            In examining the scope of the use of sec. 80 of the Knesset Rules, significant weight should be given to the practice by which bills for Basic Laws on behalf of committees that were approved concerned matters of the Knesset or were enacted with broad consensus (or both). In this regard, I noted in HCJ 706/19 Frej v. Speaker of the Knesset [151] that:

The work tradition of the Knesset as customary and accepted by it certainly carries weight. According to sec. 19 of Basic Law: The Knesset, it determines how the Knesset should act where work procedures have not been prescribed by law or in the Rules. A fortiori, weight should be given to the manner in which the Knesset acts when it acts over the course of years to implement a provision of the Rules in accordance with its accepted practice for interpreting it. It has already been held that when a possible interpretation of a legal provision is consistent with the factual situation created and by which it acts, that should be preferred to another possible interpretation that deviates from that situation (ibid., para. 9 – emphasis added); and see: Edelstein, para. 12 of my opinion).

203.     Ensuring a proper legislative procedure is of particular importance when we are concerned with enacting a Basic Law. As I noted above, the absence of a rigid mechanism for adopting and amending Basic Laws is conspicuous in our constitutional project, and there is currently no real difference between the procedure for adopting and amending a Basic Law and the procedure for enacting “regular” laws as arranged in the Knesset Rules (see: para. 75 above; Bar-On, para. 20, per President Beinisch; Academic Center, para. 36, per Deputy President Rubinstein). Therefore, and in the absence of Basic Law: Legislation, I am of the opinion that one must be particularly strict in observing the provisions of the Knesset Rules in the process of adopting Basic Laws, which is currently the primary – and actually the only – mechanism that arranges the procedure for adopting and amending the norms that sit at the apex of our system’s normative pyramid. One must, therefore, strictly insist that employing the path of a bill on behalf of a committee, established in sec. 80 of the Knesset Rules, be done only in the cases for which it was intended, in accordance with the work tradition that has been established by the Knesset in this regard. This is particularly so given the nature of the arrangement, which establishes an “abridged” path for advancing bills in comparison to private member’s and government bills, and it therefore raises an inherent concern that it might be abused in order to circumvent the procedural requirements found in the other paths.

 

Afterward

204.     After writing my opinion, I read the comprehensive opinions of the other members of the panel, and I would like to add but a few brief comments in regard to the opinions of my colleagues Justices Sohlberg and Mintz, who are of the opinion that there are no limits upon the Knesset’s constituent power and that this Court lacks jurisdiction to review Basic Laws.

205.     My colleague Justice Sohlberg dedicates a significant part of his opinion to a historical survey of the opinions of the Presidents and justices of this Court over the generations and seeks to derive from it that the consistent position of the case law since the establishment of the state is that the constituent power of the Knesset is unrestricted. I find this conclusion problematic, to put it mildly. First, some of the judgments to which my colleague refers were written before there was  a single Basic Law in the Statutes, and a few even preceded the “Harari Decision”. Second, the vast majority of quotes that my colleague cites do not in any way concern the Knesset’s power as a constituent authority. It is, therefore, unclear how he can rely upon those quotes that did not treat of the questions before us at present and that referred to an entirely different constitutional context.

            Third, even were I to accept the position of my colleague Justice Sohlberg that one can apply those quotes to the matter before us, if only by analogy, my colleague’s historical survey ends – and for good reason – at the beginning of the nineteen nineties. This, while completely ignoring the important developments and the significant strides in Israeli constitutional law over the course of the last three decades. The concept upon which my colleague Justice Sohlberg relies in regard to the unlimited sovereignty of the Knesset was not accepted in the Mizrahi Bank decision nor in the years that followed. Instead of that concept, the theory that was adopted over the years was that of the constituent authority, which recognizes that Basic Laws place restrictions upon the Knesset in enacting laws, while concomitantly not conceptually rejecting the existence of limits upon the constituent authority (see: Mizrahi Bank, 394; HCJ 4676/94 Mitral, Ltd. v. Knesset [156] 28; The Tal Law case, 717; Bar-On, 311-312; Academic Center, para. 35, per Deputy President (emer.) Rubinstein; para. 3, per Deputy President (emer.) Joubran; and para. 11, per Justice Mazuz). We also walked this same path just recently in an expanded panel in Hasson, where we held that the Knesset is not “all powerful” in adopting Basic Laws, and that it is not within its power to facially deny the nuclear characteristics of the State of Israel as a Jewish and democratic state.

206.     In the opinion of my colleague Justice Sohlberg, I chose “to take the short path” in all that concerns the basic question of the source of the limitations upon the constituent power, and he further notes that it is unclear what those “constitutional data” may be from which we can learn of those limitations (para. 105 of his opinion). In that regard, I can only refer back to what is stated in paras. 64-67 above, and to paras. 19-31 of my opinion in Hasson, which also refer to that issue. In my view, the Declaration of Independence, the Basic laws, and the statutes enacted by the Knesset over the years, as well as the case law of this Court, clearly inform us that the identity of the State of Israel as a Jewish and democratic state cannot be questioned – not even by the constituent authority. On this basic issue, it would seem that there is a gaping abyss between most of the members of this panel and my colleagues Justices Sohlberg and Mintz. In their view, as Justice Sohlberg writes, “all of the constitutional data leads to the opposite conclusion, according to which ‘the habitat’ of the constituent authority – is unlimited” (para. 105 of his opinion). In other words, My colleagues Justices Sohlberg and Mintz are of the opinion that any piece of legislation entitled “Basic Law”, even if it dismantles the building blocks upon which the Israeli constitutional enterprise is built, and even if it defaces the “birth certificate” and the “identity card” of the State of Israel as a Jewish and democratic state, cannot be questioned. To that, I am afraid, I cannot agree.

207.     The idea that there is no explicit source of authority that empowers the Court to examine whether the Knesset deviated from its constituent authority runs as a common thread through the opinions of my colleagues Justices Sohlberg and Mintz (see para. 70 above). But for my colleagues, this starting point is also the end point. I take a different position, and as I explained in my opinion, the approach of my colleagues in this regard has also not found purchase in many legal systems around the world, in which the courts have long held that even in the absence of an express basis, they hold the power to examine the “constitutionality” of amendments to the constitution as part of their role in defending it (see: paras. 61 and 69 above). In Israel, as we know, the task of establishing a constitution has not yet been completed. Therefore, we refrained from expressing a decisive view on this question. However, despite the complexity of the issue, it is no longer possible not to address it, and even the Government Respondents in these petitions asked that we decide this issue on the merits. Given that there are limits upon the Knesset’s constituent power, given that the existing constitutional reality in Israel makes it possible to fundamentally change our Jewish and democratic character with great ease, and given the role of the Court in our legal system – I am of the opinion that in those edge cases in which the Knesset exceeded the boundaries of its constituent power, the Court holds jurisdiction to decide that the norm is not constitutionally valid.

208.     My colleague Justice Sohlberg notes that even were he to accept the view that this Court holds jurisdiction to review Basic Laws, intervening in them requires a “consensus” among the justices (paras. 127-129 of his opinion). I assume that by those words, my colleague seeks to outline the approach for the constituent authority to establish the lege ferenda in accordance with his approach. But as long as no other decision rule has been established in a statute or Basic Law, we have only the rule that when there is a difference of opinion among the justices, the decision will be in accordance with the opinion of the majority of the panel (sec. 80(a) of the Courts Law). And note – just as this Court is not meant to stand in the shoes of the constituent authority and establish what special majority is needed for adopting a Basic Law, it is not meant to “enact” special decision rules for itself. As we have noted on more than one occasion, in order to arrange these matters, it is necessary to enact Basic Law: Legislation, which, sadly, is still missing from our constitution-in-formation. That Basic Law is meant to address these issues and other important issues, while striking a balance among all the relevant, inextricably interrelated aspects.

209.     I would also like to briefly address my colleague Justice Sohlberg’s statements in regard to the path of proposing a Basic Law on behalf of a committee under sec. 80(a) of the Knesset Rules. My colleague is of the opinion that in carrying out an empirical examination of Basic Law bills on behalf of a committee, we should also consider those bills that were ultimately not adopted as Basic Laws. I do not think so. My colleague did not present even one example of a Basic Law bill on behalf of a committee that was not related to matters of the Knesset and that was not advanced by broad consensus and that nevertheless reached the “finish line”. Judging by the results, this fact shows that when one of these conditions was not met, the debate on those bills ended without their finding their way to the lawbooks. As opposed to my colleague’s position, I do not think that this is a “coincidence” but rather a practice that became established in the Knesset’s work, which derives from the deviation of a Basic Law bill on behalf of a committee from the caution adopted by the Knesset in the past in making use of this path. This conclusion is supported by express statements of the Knesset Legal Advisor and the legal advisor to the Constitution Committee, who also pointed to such a practice (see para. 200 above). Therefore, even after reading my colleague’s comments, I remain in my opinion that in examining the way that sec. 80(a) of the Knesset Rules has been used, we cannot ignore how the Knesset itself has acted over the years, and the practice that has become entrenched in its work in this regard.

210.     My colleague Justice Mintz notes that “the very limiting of the scope of judicial review by this Court in regard to the administrative reasonableness standard […] is not a ‘crossing of the line’ by the legislature or the constituent” (para. 83 of his opinion). I can only agree. However, as I noted above, the Amendment does not only comprise some restriction or other upon the scope of judicial intervention in certain situations. In practice, due to its extreme, sweeping language, it effectively constitutes an abolishing of the reasonableness duty that applies to the Government and its ministers that has unprecedented, disastrous consequences for the individual and for the entire Israeli public.

            Lastly. I will admit that I cannot quite fathom what my colleague Justice Sohlberg intended by the proposal that he raised in para. 250, at the conclusion of his opinion. According to that proposal, alongside the declaration of the voiding of Amendment no. 3 by majority opinion, we should collectively add and declare that “we will no longer use the reasonableness standard in regard to decisions by the Government and its ministers” except in accordance with “that tried-and-true test that has served us well since the very beginning and until the decision in the matter of Dapei Zahav […]”.  Personally, I am of the opinion that now that Amendment no. 3 has been declared void by the majority, the Court should continue to walk its well-trod path, continuing to develop the case-law reasonableness standard from case to case and matter to matter “in the good manner of the Common Law” (para. 180 of the opinion of Justice Sohlberg); and see in the same matter: the response to the parliamentary question quoted in para. 178 of his opinion).

 

Before Concluding

211.     About a month after the hearing in these petitions, a merciless terrorist attack befell us, and since then the State of Israel finds itself is in a hard and determined war against terrorist organizations that seek our destruction. We pray for the welfare of the soldiers and the members of the defense forces who risk their lives for the security of the state, and for the speedy return of those kidnapped to their homes.

            But even at this difficult hour, the Court must fulfil its role and decide the issues brought before it. This is all the more so when the issues concern the nuclear characteristics of the identity of the State of Israel as a Jewish and democratic state. To this is added the fact that the publication of our judgment at the present time is required by sec. 15(a) of the Courts Law, given the date of the retirement of Justice (emer.) Baron and the date of my retirement from the bench.

 

Conclusion

212.     Deciding upon these petitions required us, en banc, to address the sources and building blocks of the Israeli constitutional project:

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 […] Once this choice is made, the judges are required to uphold it (Mizrahi Bank, 398).

            Upholding the choice to take the constitutional path means, in my opinion, an uncompromising defense against an extremely severe violation of any of the two pillars upon which the State was founded as a Jewish and democratic state.

213.     The principle of majority rule is of the “soul of democracy” (Mizrahi Bank, 546). However, it does not constitute justification for enacting a constitutional norm that would so comprehensively prevent oversight and review of the decisions of the elected echelon. “Democracy is not only majority rule and is not solely a proper process for establishing the public will by means of representatives in the legislative body. Democracy is much more than that. Democracy is also the rights of each and every person, whether a part of the majority or a part of the minority. Democracy is also the separation of powers, the rule of law (formal and substantive) and the independence of the judiciary” (The Tal Law case, 719). Given the fragile, deficient system of checks and balances in Israel, the absolute elimination of judicial review of the reasonableness of decisions of the Government and its ministers renders a substantial part of the role of the Court in protecting the individual and the public interest devoid of content:

Judicial review in a democratic state, according to the doctrine of separation of powers and the doctrine of checks and balances that developed from it, was not intended to strengthen governance but the opposite: to restrain the power of the government. To the extent that the law requires, in order to protect human rights and fundamental values from abuse of power, and to ensure good, proper, and fair governance. This function is placed upon the court and the court cannot properly fulfil this function without the reasonableness standard (Zamir, Administrative Power, 3614; and see: Scheinfeld, para. 4, per Justice Baron).

214.     For the reasons elaborated above, Amendment no.3 to Basic Law: The Judiciary cannot, in my opinion, be reconciled with the principle of separation of powers and the principle of the rule of law, which are two of the most important characteristics of our democratic system. Such a blow to the very heart of our founding narrative cannot stand.

            Therefore, I recommend that we hold that in enacting Amendment no. 3 to Basic Law: The Judiciary, the Knesset exceeded its constituent power, and that we therefore declare the Amendment void. I would further recommend that under the circumstances of the matter and given the fundamental issues concerned, there be no order for costs.

 

                                                                                                            The President (emerita)

 

 

 

 

Abstract

HCJ 5658/23 Movement for Quality Government v. Knesset

Date of judgment: 20 Tevet 5784 (Jan. 1, 2024)

Before: President E. Hayut, Deputy President U. Vogelman, Justices I. Amit, N. Sohlberg, D. Barak-Erez, A. Baron (emer.), D. Mintz, Y. Elron, Y. Wilner, O. Grosskopf, A. Stein, G. Canfy-Steinitz, K. Kabub, Y. Kasher, and R. Ronen.

A majority of the Supreme Court (12 of 15 justices) held that the Court held jurisdiction to conduct judicial review of Basic Laws and to intervene in exceptional, extreme cases in which the Knesset deviated from its constituent authority.

A majority of the Court (8 of 15 justices) further held that Amendment No. 3 to Basic Law: The Judiciary, which comprehensively eliminated judicial review of the reasonableness of decisions of the government, the prime minister, and government ministers, should be declared void. This, in view of the serious, unprecedented harm to the core character of the State of Israel as a democratic state.

In view of the importance of the issues raised by the petitions against Amendment No. 3, the Court held an en banc hearing on Sept. 9, 2023. The events of October. 7, 2023, unrecognizably transformed Israeli reality, and the country has since been at war with murderous terrorist organizations. But inasmuch as Amendment No. 3 remains in force, and given the final date upon which President (emer.) Hayut and Justice (emer.) Baron could render judgment in accordance with the Courts Law [Consolidated Version], 5744-1984, the decision on the petitions was handed down.

The Court majority (per President Justice E. Hayut, Deputy President U. Vogelman, Justice I. Amit, Justice D. Barak-Erez, Justice (emer.) A. Baron, Justice Y. Wilner, Justice O. Groskopf, Justice A. Stein, Justice G. Canfy-Steinitz, Justice K. Kabub, Justice Y. Kasher, and Justice R. Ronen concurring) held that in exceptional, extreme cases, the Supreme Court – sitting as High Court of Justice – holds the authority to void a Basic Law that constitutes a deviation from the constituent authority of the Knesset. In this regard, the Court already held in HCJ 5555/18 Hasson v. Knesset (2021) (the “Nation State” case) that the Knesset, as a constituent authority, is not “all powerful”, and that it does not hold the authority – even by means of a Basic Law – to deny or facially contradict the core character of the State of Israel as a Jewish and democratic state. Given these limitations, and in order that it be possible to enforce them, a majority of the Court was of the opinion that the Supreme Court’s authority to conduct judicial review over Basic Laws must be recognized. Some of the justices based this conclusion upon Israel’s unusual constitutional structure, which is, inter alia, characterized by a lack of any designated, separate process for adopting constitutional norms; the problematic practice of enacting and amending Basic Laws that testifies to a contempt for the Basic Laws and to their being turned into pawns of the political majority; and upon the role of the Court in protecting the constitutional enterprise. In this regard, some of the justices emphasized Israel’s Declaration of Independence as a basis for the judicial review of Basic Laws, while others grounded that authority in Basic Law: The Judiciary, which grants the High Court of Justice authority to grant relief for the sake of justice and to issue orders to all state authorities.

A majority of the Court (per President  E. Hayut, Deputy President U. Vogelman, Justice I. Amit, Justice D. Barak-Erez, Justice (emer.) A. Baron, Justice O. Groskopf, Justice K. Kabub, and Justice R. Ronen concurring) held that the amendment that was the subject of the petitions – Amendment No. 3 to Basic Law: The Judiciary – was an extreme case in which the Knesset deviated from its constituent authority and therefore, there was no alternative but to declare the amendment void. The Court emphasized that the exceptional, sweeping language of the amendment prevented all courts from adjudicating and hearing arguments upon the reasonableness of decisions of the government, the prime minister and government ministers in regard to every decision, including a decision to refrain from exercising authority. The majority was further of the opinion that interpretation of the amendment left no room for doubt that it applies to capricious decisions and to decisions that are unreasonable in the extreme. The result is an unprecedented infringement of two of the core characteristics of the State of Israel as a democratic state – the separation of powers and the rule of law. In this regard, it was noted that the amendment significantly increases the substantial power already concentrated in the hands of the government and its ministers, while blocking the possibility for an individual to obtain relief in a wide range of situations in which grave harm may be inflicted to his important interests as a result of governmental actions. It was further emphasized that the amendment leads to a situation in which the most significant elements of the executive are effectively exempted them from their duty to act reasonably, it leaves whole areas without effective judicial review, it prevents the protection of such public interests as ethical conduct and administrative regularity, and may lead to a fundamental change of the state’s civil service, severe harm to the independence of the law enforcement authorities, and exploitation of government resources for political gain in the electoral process.

Justice Y. Wilner was of the opinion that the amendment could be upheld by means of narrow construction and therefore, the Court should not consider voiding it. Justices Stein and Canfy-Steinitz were of the opinion that it is possible and would be appropriate to construe the amendment narrowly, and that there is, therefore, no need to intervene inasmuch as it a far cry from those instances in which it might be said that the Knesset deviated from its constituent authority. Accordingly, Justices Wilner, Stein and Canfy-Steinitz were of the opinion that the amendment should be construed such that it would prevent judicial review only on the basis of reasonableness as it has developed since the Court’s decision in HCJ 389/80 Dapei Zahav v. Broadcasting Authority (1980), which focuses upon examining the balance of the various considerations for the governmental decision (“reasonableness balancing”). In accordance with their approach, the amendment, as so construed, would still allow for intervention in the case of capricious decisions in which the Court could have intervened even prior to Dapei Zahav. Justice Kasher refrained from deciding upon the question whether the amendment could be narrowly construed, holding that despite the amendment’s infringement of the separation of powers and the rule of law, it did not rise to the level that would justify the High Court’s intervention in a Basic Law.

Justices Sohlberg and Mintz dissented from the majority view in all that concerned the Court’s jurisdiction in principle to conduct judicial review of Basic Laws, as well as in regard to its authority to decide upon the question itself, noting that there is no legal source that would permit such review. According to their approach, even were one to ignore the problem of the Court’s jurisdiction, the amendment stood far from the narrow limits established by the majority, and they noted that even were it proper to adopt a narrow exception that would allow intervention in Basic Laws in extreme cases of infringement of the basic rights of the individual, the arguments in regard to Amendment No. 3 were not ripe for decision in that the amendment had yet to be interpreted and its boundaries had yet to be set. Therefore, it could not be assumed that its consequences would be as severe as suggested.

 

Following are summaries of the opinions of each of the justices (in the order of their appearance in the judgment):

President (emer.) E. Hayut:

In her opinion, President (emer.) Hayut reiterated the Court’s holding in HCJ 5555/18 Hasson v. Knesset (2021), according to which the Knesset’s power as a constituent authority is not unlimited, and that it is not authorized to enact a Basic Law that denies or directly contradicts the core character of the State of Israel as a Jewish and democratic state. According to the President (emer.), this conclusion derives from the “elements of the constitution” developed since the earliest days of the state – the Declaration of Independence, the Basic Laws, the laws enacted by the Knesset, and the case law of the Supreme Court. The President (emer.) further held that given the unique character of Israel’s constitutional regime – the enacting of a constitution “chapter by chapter”, the absence of a rigid process for its enactment and amendment, and the political majority’s control over the exercise of constituent authority – the limitations upon the Knesset’s power cannot be left unenforced and exempt from judicial review through which the Court can intervene in those extreme, exceptional cases in which the Knesset deviates from the bounds of its constituent authority in enacting a Basic Law.

According to the President (emer.), Amendment No. 3 to Basic Law: The Judiciary is an extreme case in which the Knesset deviated from its constituent authority. In this regard, it should be emphasized that given the existing Israeli situation, judicial review is the only effective check upon the substantial power concentrated in the government and its ministers. Therefore, the amendment that is the subject of the petitions – which comprehensively denies the Court’s authority to conduct judicial review of the reasonableness of all decisions of the government, the prime minister, and government ministers, and even blocks any possibility of addressing such questions – strikes an extremely severe blow to the principle of the separation of powers and the principle of the rule of law. This extreme harm to two of the quintessential characteristics of the State of Israel as a democratic state (the significance of which the President (emer.) addressed at length in her opinion) can significantly affect the individual and the public in general in an unprecedented way. Therefore, the President (emer.) held that there is no alternative to holding that in enacting Amendment No. 3, the Knesset deviated from its constituent authority and the amendment must be declared void.

Justice Y. Wilner: Justice Y. Wilner concurred with the opinion that the Court holds jurisdiction to review Basic Laws. In her opinion, this is also the case by virtue of sec. 15(c) of Basic Law: The Judiciary, which authorizes the Court to “grant relief for the sake of justice”. She further held that in view of the ambiguity of the term “reasonableness” adopted by the constituent authority in the framework of the amendment, a question arises as to its meaning. Justice Wilner resolved this question by means of an affirming construction according to which the repeal of reasonableness refers only to “reasonableness balancing”, i.e., the sense it was given in Dapei Zahav. In her opinion, this conclusion is required by the firmly established rules of the Court according to which a construction that affirms the law is to be preferred to one that may lead to its voidance. In her opinion, such an affirming construction is linguistically possible, it is grounded in the subjective purpose, and it best realizes the objective purpose. Given the said construction, the amendment does not strike a mortal blow to the democratic identity of the State if Israel. This is so, inter alia, in view of the fact that the amendment does not detract from the duty of the government and its ministers to act lawfully and does not prevent effective judicial review in accordance with the other grounds for such review. And note that while cases may arise in which it will not be possible to grant relief as in the past, nevertheless, while that may be regrettable, we will be concerned with decisions made with authority, following a proper administrative process, in good faith, in the absence of irrelevant considerations, that are proportionate, not arbitrary, non-discriminatory, and not fundamentally unfounded. Justice Wilner further noted that the approaches that, over the years, called for restoring reasonableness to its original meaning were never deemed anti-democratic. She further explained that in examining the constitutionality of the amendment, the Court must take account only of the existing legal situation, and not give heed to arguments concerning future legislative bills. Therefore, Justice Wilner held that the petitions should be dismissed while interpreting the amendment in accordance with an affirming construction.

 

Justice Y. Elron:

Justice Elron was of the opinion that the petitions should be dismissed. He reiterated his principled view that the mandate granted to the High Court of Justice to examine the justification for decisions by the members of the Knesset is limited, and that in the absence of an express norm that limits the authority of the Knesset to enact Basic Laws or that establishes the manner for the exercise of that authority, the continued development of doctrines that grant the Court authority to set the limits for adopting the constitution constitutes a role reversal. Justice Elron further noted his position in regard to the possible existence of a narrow exception in the case of exceptional, extreme cases of harm to fundamental individual rights as a last resort. As for the “cause of reasonableness”, Justice Elron emphasized that if the limitation imposed by Amendment No, 3 meets the test for intervention in a Basic Law, the door that is opened for the Court’s intervention is not narrow at all. In addition to his position in principle, Justice Elron was of the opinion that the petitions could also be dismissed on the grounds that the arguments against Amendment No. 3 were not ripe. He explained that where the Court is of the opinion that it would be proper to consider intervening in the content of a Basic Law, this should be carried out only after examining the law’s application and the definition of its scope as interpreted by the Court. In the instant case, the courts might establish that the import of the amendment is the abolition of the Dapei Zahav rule, and nothing more. If that be the case, then the magnitude of the amendment’s harm to the various democratic principles is far from justifying voiding a provision of a Basic Law. In conclusion, he wrote: “I am firm in my conviction that this is not the time to shake the constitutional foundations of our state. It would be better that we defer the matter to the appropriate time, if and when a decision will be required on the basis of the facts of the case. I fear that at the present time, the harm that will be caused by undermining the foundations of Israeli constitutional law due to the voiding of Amendment No. 3 may be many times greater than the harm in leaving it in place.”

 

Jusitce A. Stein:

Justice A. Stein held that the enactment of laws and of Basic Laws by the Knesset is subject to the boundaries delineated in the Declaration of Independence. This is the case inasmuch as the Proclamation [of the Provisional Council of State] and the Law and Administration Ordinance – which were enacted and promulgated upon the establishment of the state – expressly established that the legislative authority of the Provisional Council of State, which transferred that authority to the Knessets that would succeed it, is grounded in the Declaration of Independence. In addition, Justice Stein held that the amendment to the Basic Law that is the subject of the petitions does not contradict the principles of the Declaration of Independence, inasmuch as it only repeals the Supreme Court’s authority to void government decisions on the basis of unreasonableness as an independent and exclusive cause, while preserving its authority to void government decisions that are found to be facially capricious due to irrelevant considerations, arbitrariness, lack of good faith, and other causes for invalidation. In the opinion of Justice Stein, this narrowing of judicial review returns administrative law to its status prior to the Dapei Zahav case – which recognized unreasonableness of a governmental decision as an independent cause for invalidation – as was expressly stated in the explanatory notes of the amendment’s bill. For this reason, Justice Stein held that the amendment that is the subject of the proceedings does not uproot judicial review and therefore does not breach the requirement of basic justice in the Declaration of Independence. This led Justice Stein to the conclusion that the amendment under review is constitutional.

 

Justice I. Amit:

In his opinion, Justice Amit addressed the Israeli legal system’s lack of checks and balances for restraining the government, which grants it unusual power. This situation leads to the conclusion that what is needed is additional mechanisms for strengthening the democratic regime, whereas the amendment that is the subject of the proceedings moves in the opposite direction. It further empowers the executive branch and harms the fundamental principles of the legal system.

Justice Amit addressed the sweeping language of the law, which appeared to apply to reasonableness in all its forms in the case law, without distinguishing among different types of decisions. He explained that the reasonableness doctrine treats of the day-to-day life of the citizen, and its main power and effect are not in the post-facto examination of an administrative decision in court, but rather ab initio, at the stage of arriving at and framing the decision. In the absence of the reasonableness cause, the duty of reasonableness will wither and die, which may leave the public with no defense, and reshape the civil service. The other tools offered by administrative law cannot fill the gap that would result, and the possibility for examining a decision by means of parliamentary oversight or public pressure cannot provide a real alternative to judicial review.

The amendment to the Basic Law inflicts harm upon the democratic core of the state: the right to access to the courts, the principle of the separation of powers and the principle of distribution of power upon which that rests, and upon fundamental constitutional rights. The amendment also undermines several aspects of the rule of law – placing the government and its ministers above the law; facilitating improper appointments and dismissals, including of the “gatekeepers”; immunity in regard to refraining to exercise administrative power and ignoring professional considerations; a lack of supervision over an interim government; and a fear of elections tampering.

 

Justice G. Canfy-Steinitz:

Justice G. Canfy-Steinitz agreed that the Supreme Court has the authority to conduct judicial review of Basic Laws, but in her view, an examination of the amendment in accordance with its proper interpretation leads to the conclusion that it does not meet the very narrow criteria that would justify voiding a Basic Law.

The issue of the judicial review of Basic Laws raises complex questions that would be better resolved in the public arena. When the Court is required to address this question, Justice Canfy-Steinitz is of the view that the Basic Laws provide a textual foundation for a limitation that the Knesset assumed upon itself, subjecting its constituent power to preserving the character of the State of Israel as a Jewish and democratic state. This limitation is grounded in the existing Basic Laws, including sec. 17A(a)(1) of Basic Law: The Knesset, the purpose of which is to protect the core constitutional identity of the state and prevent a change of the system “from within”. The Court’s authority to review Basic Laws derives from the said limitation in cases where the Knesset deviates from its constitutional limits – but this is as narrow as “the eye of a needle” and should be exercised only in the most rare cases of mortal harm to the core identity of the state.

The amendment was adopted against the background of years of debate on the scope of reasonableness. While the broad, sweeping language of the amendment raises problems, it is a far cry from threatening to undermine the foundations of Israeli democracy. On the interpretive level, the amendment should be narrowly construed, such that it would prevent judicial review on the basis of reasonableness “balancing” but not on the basis of the “narrow” cause of reasonableness. Under this construction, the practical ramifications of the amendment are very limited, inasmuch as recourse to reasonableness balancing can be replaced by other grounds for review in administrative law. The few decisions that cannot be reviewed under the amendment are decisions that by their nature and by the normative position of the legislature – which must be respected – cannot be examined in terms of reasonableness balancing. This would not strike a mortal blow to the rule of law and the principle of the separation of powers.

 

Justice R. Ronen:

Justice Ronen concurred in the opinion of President (emer.) Hayut. She held that the power of the Knesset, as a constituent authority, is limited, such that it cannot enact Basic Laws that significantly infringe the two core characteristics of the State of Israel – its being a Jewish and democratic state. She further held that the Supreme Court holds jurisdiction to conduct judicial review of Basic Laws.

Justice Ronen also held that the possibility of a narrow construction of the amendment must be rejected inasmuch as it has no basis in the language of the amendment, clearly contradicts the subjective purpose of the amendment, and provides the Court no clear operative instruction as to how to examine government and ministerial decisions in the future. This is the case, inter alia, in view of an examination of the legal situation before and after the Dapei Zahav case, and rejecting the assumption according to which an instruction to return to the “pre-Dapei Zahav” situation is significant. It was therefore held that the amendment, properly construed, denies the Court the possibility of examining any claim whatsoever that touches upon reasonableness.

Justice Ronen addressed the standard of review applicable to the amendment and held that since the amendment undermines the judiciary’s ability to review the executive, while materially changing the existing system of balances among the branches, it raises a suspicion concerning Knesset’s inherent conflict of interests. This fear is intensified by the fact that the amendment was adopted without the consent of any of the members of the opposition and its immediate entry into force. That being the case, she held that a somewhat more rigorous standard of review should be applied to the question of whether the harm to democratic characteristics constitutes a deviation from constituent authority.

In view of the interpretation of the amendment and the denial of judicial review in regard to all aspects of reasonableness, Justice Ronen’s conclusion was that the amendment inflicts significant harm to the core values of the democratic system. In this regard, inter alia, the subject of appointments and dismissals of gatekeepers was emphasized. Therefore, in view of the standard of review noted above, Justice Ronen held that the Knesset deviated from its authority in adopting the amendment, and it should be declared void.

 

Justice Y. Kasher:

Justice Kasher concurred with the opinion of the President (emer.) according to which the constituent authority of the Knesset is limited in that it is subject to the definition of the State of Israel as a Jewish and democratic state. In addition, the Hight Court of Justice holds the authority to decide that the Knesset has deviated from its constituent authority and order the voiding of a Basic Law. The test for a deviation from the Knesset’s constituent authority was established in the Hasson case – a narrow test expressed in the question whether the amendment denies the core democratic identity of the state or inflicts mortal harm upon the minimal core characteristics of its identity as a Jewish and democratic state.

In the opinion of Justice Kasher, the amendment under review weakens judicial review of the government and its ministers and thereby harms the separation of powers and the rule of law. However, not every shift in the balance point between the judiciary and the executive by means of narrowing judicial review of the executive constitutes a denial of the core democratic identity of the state. In his opinion, the amendment will lead to a certain weakening of judicial review over the executive. However, it is not expected to lead to a situation in which the said review will be ineffective, and thus there is no justification for voiding the amendment.

Justice Kasher concluded in stating that the question that he was called upon to decide is not to what extent he agrees with it and whether, in his view, it were better had it not been enacted, but rather whether the amendment that is the subject of the petitions rises to the level of the extreme circumstances – a mortal blow to the minimal core characteristics of the State of Israel’s identity as a Jewish and democratic state – that alone would justify the Court’s exercise of its very far-reaching authority to declare an amendment to a Basic Law void. Justice Kasher stated that in his opinion, the answer was no, and thus his conclusion.

 

Deputy President U. Vogelman:

The Deputy President held that the constituent authority cannot undermine the Jewish and democratic character of the state, and that the characteristics of the Israeli constitutional enterprise and the actual use of the constituent authority lead to the conclusion that the Court is the institution that holds the authority to decide whether the Knesset has deviated from its constituent authority. The Deputy President held that Israel’s unique situation, in which the control of executive, legislative and constituent powers are all effectively held by the government, as well as the shortcomings of the system for establishing constitutional provisions, have bearing on the threshold for the Court’s intervention.

 As for Amendment No. 3, the Deputy President held that barring any possibility of the Court addressing a claim of unreasonableness in regard to the ministerial level constitutes a mortal blow to the principle of the rule of law and the principle of the separation of powers. This harm is expressed in three spheres: first, for the individual who is harmed by an unreasonable decision and whose access to the Court is barred by the amendment; second, at the ministerial level, regarding  which the amendment removes a significant limitation and erodes the already shaky system of checks and balances of the Israeli legal system; third, regarding the legal system as a whole, by intentionally creating a system in which “there is law but no judge”.

The amendment’s harm in these three spheres is particularly severe because it is comprehensive and absolute: it prevents every court from addressing the cause of reasonableness in regard to decisions at the ministerial level; it extends to every decision at that level; it lacks mechanisms for oversight or other balances; the other causes of action in administrative law cannot provide an effective alternative.

The Deputy President added that a narrow construction of the amendment is not possible in this case. This is so, inter alia, because the suggested interpretive theories have no foothold in the language of the amendment and do not provide a coherent alternative. In any case, he held that even under such interpretation, the severe harm to the rule of law and the separation of powers would remain.

 

Justice D. Mintz:

Justice D. Mintz emphasized that every agency and every judicial instance can act only within the boundaries of the authority granted to it by law. The Court must take care to act strictly within the bounds of its authority, with the same strictness that it applies when the question of authority arises in regard to other authorities. In this regard, jurisdiction to review laws does not rest upon strong foundations, and there is certainly no source of authority that would permit the Court to address the validity of a Basic Law or void it. The development of doctrines that examine the content and substance of Basic Laws ex nihilo undermines fundamental principles of democracy, among them the separation of powers, the legality principle, and the rule of law. Voiding a Basic Law on the basis of a vague doctrine and an undefined formula comprises a heavy price from a democratic perspective, particularly when it involves an issue in regard to which the Court itself has an “institutional conflict of interests”.

From this perspective, there is no need to address the amendment on the merits. In any case, the discussion of its construction is premature inasmuch as its boundaries have yet to be shaped and put into practice. In regard to the position of the majority, Justice Mintz emphasized that a constitutional provision should be interpreted from a “broad perspective” and not “technically”, in a manner that reflects the “fundamental concepts” that it is intended to realize as a constitutional document; it is difficult to establish that the language of the amendment is “sweeping”, unbounded, and leaves “no room for doubt” as to its scope; and there is no flaw in the very fact that it concerns a general concept that requires interpretation. In addition, the amendment does not entirely preclude judicial review of government and ministerial decisions, does not grant them absolute, comprehensive discretion, and does not grant immunity to their decisions. The State of Israel is a strong democracy, and it remains so even after the amendment. The fact that there is a narrow majority among the opinions of the judges for the conclusion that we are concerned with a mortal blow to the principles of democracy also speaks for itself.

 

Justice K. Kabub:

Justice Kabub noted that recognition of the limitations upon the legislature in a democratic state does not necessarily come at the expense of the people’s sovereignty. Someone can protect them if their representatives in the legislature undermine the democratic regime. He explained that the best illustration of such restrictions is the fact that the people did not authorize the Knesset to do whatever it pleases. Thus, the Knesset is not authorized to extend its term beyond four years in the absence of special circumstances, even if all one-hundred-and-twenty members vote in favor of such a law in three readings and call it a Basic Law. Thus, he held that in view of the structure of the Israeli regime, a result according to which there would be no judicial review of Basic Laws constituted through a deviation from authority is unacceptable. However, such review must be undertaken with special care and only in an extreme case.

After surveying the development of reasonableness in Israeli law, Justice Kabub concluded that at root stands the view that the legislature cannot grant the administration authority to make arbitrary and capricious decisions. Over time, the reasonableness doctrine expanded, and the interest-balancing test was devised in the Dapei Zahav case, which has come under criticism primarily because of its ambiguous boundaries. Nevertheless, the proper construction of Amendment No. 3 shows that the Knesset did not merely annul the interest-balancing test, but also comprehensively eliminated judicial review of the reasonableness of the decisions at the ministerial level.

Justice Kabub emphasized that exempting the ministerial level from accountability when it deviates from its authority means that the nation would be governed by people, contrary to the purest description of sovereignty as governance by laws. Therefore, there is no alternative to judicial intervention. However, he explained that attention should be paid to the criticism of the interest-balancing test that has been expressed over the years, which went as far as the Knesset and led to amending a Basic Law, and it would be appropriate to give that expression in the case law.

 

Justice (emer.) A. Baron:

Justice Anat Baron noted that 75 years after that historic moment of the Declaration of Independence, Israeli democracy is under a threat from within – as illustrated by the amendment to Basic Law: The Judiciary. The amendment was intended to bring about a fundamental regime change. It frees the government and its ministers from the bonds of judicial review on the grounds of reasonableness and grants the executive the power to rule without effective checks and balances. The import of the amendment is the granting of a comprehensive exemption to the government and its ministers from the duty to act reasonably in their decisions, in a manner that grants the government unprecedented power and the status of a “super” executive-legislative-constituent authority. This strikes a mortal blow to the principle of the separation of powers, the rule of law, and the democratic character of the state.

Justice Baron explained that there is no appropriate alternative to the reasonableness doctrine for maintaining good governance and for protecting individual rights. At the same time, the amendment opens the door to political cronyism in the public administration and undermines the independence of those who hold professional appointments, particularly the “gatekeepers”, inasmuch as their appointment and dismissal would be subject to the grace of the ministers and the government. In Justice Baron’s opinion, the Supreme Court is granted the authority to establish that a constitutional norm is void in extreme cases in which the Knesset deviates from its constituent authority. In the instant case, adopting an affirming construction of the amendment is not possible as it would constitute drafting a new Basic Law, which is neither within the authority nor the role of the Supreme Court. There are those who seek to understate the dimensions of the matter, and make it appear as if the amendment is an inconsequential triviality of minor or marginal importance. But this is an acute moment in which one cannot stand aside, and the amendment must be declared void. In the words of the poet: “Therefore, send not to know for whom the bell tolls, it tolls for thee.”

 

Justice O. Grosskopf:

Justice Ofer Grosskopf concurred in the opinion of President (emer.) Hayut that the petitions should be granted, and that the amendment should be voided. In his opinion, the Supreme Court, sitting as High Court of Justice, holds jurisdiction to review whether the Knesset has acted in accordance with the limitations under which it operates as a constituent authority by virtue of Basic Law: The Judiciary and by virtue of substantive justifications deriving from the unique character of the Israeli constitutional enterprise. Those limitations are three: Regularity (the requirement that it enact or amend a Basic Law by the required legal procedure); Good faith (the prohibition upon exploiting the constituent authority for foreign purposes); Authority (the limitations upon the power of the sitting Knesset to deviate from the constitutional enterprise designed by its predecessors).

In the area of authority, which is the focus of the proceedings, given the nature of a sitting Knesset to shape the “constitution in the making” (continuation of the constitutional project, and not its creation ab initio), and in view of the primary purpose of the constitution (limiting the power of a transitory majority in the Knesset in its role as constituent authority), the sitting Knesset is subject (in the absence of Basic Law: Legislation) to two restrictions: First, the sitting Knesset is not authorized to undermine the fundamental principles already laid down in the “constitution in the making”, foremost among them the identity of the state as Jewish and democratic (the “constitutional givens”) in manner that would bring down the constitutional structure created by its predecessors; second, the authority of the sitting Knesset to introduce changes that constitute a significant deviation from the “constitutional givens” is contingent upon broad consensus. A transitory majority that the constitution is intended to limit is insufficient.

As for Amendment No. 3 to Basic Law: The Judiciary, Justice Grosskopf accepted the interpretive approach according to which it prevents any judicial review of the reasonableness of a governmental decision. Given that, the amendment constitutes a severe infringement of the “constitution in the making” as designed by the previous Knessets, primarily because it places the government above the law. As a result, the amendment bears severe negative consequences, and above and beyond that, it inflicts mortal harm to the principle of the rule of law, inasmuch as it comprehensively exempts those at the head of the executive branch from judicial review on the basis of reasonableness. Therefore, the amendment should be voided under the first limitation (undermining the “constitution in the making”), and alternatively, under the second limitation (significantly deviating from the “constitutional givens” without broad consensus).

 

Justice D. Barak-Erez:

Justice Barak-Erez was of the opinion that constituent authority is limited in accordance with the fundamental definition of Israel as a Jewish and democratic state. She explained that this limitation is grounded in the Declaration of Independence (which is not a constitution but establishes the limits of the constituent authority). Accordingly, the Court’s jurisdiction to conduct judicial review in cases of deviation from the constituent authority derives from this limitation and cannot be contingent upon the wording of the Basic Laws themselves.

Justice Barak-Erez reiterated her position that the Court will intervene in the content of a Basic Law only in extreme cases of overstepping the bounds, which is the situation in the present case. The amendment to the Basic Law strikes a mortal blow to the foundations of democracy by granting the government broad immunity from effective oversight. In practice,  it leads to harm on three levels: barring the path to judicial relief in regard to decisions that harm individual interests; a lack of effective oversight of interim governments to the point of potentially influencing the transfer of power (for example, by advancing a “popular” policy on the eve of elections); as well as inflicting grave harm to oversight of the regime by those holding office as “gatekeepers” and independent regulators as a result of significantly weakening judicial review over their appointment and dismissal (a subject for which adequate safeguards have not been established in the law). Justice Barak-Erez added that the suggestion of returning to the reasonableness approach of “the good old days” ignores the broad legal and constitutional context and the balances among the branches of government in which judicial review was rooted in the past, in the sense of the adage: “No man ever steps in the same river twice”.

 

Justice N. Sohlberg:

Justice Sohlberg was of the opinion that it would be better to deny the petitions in limine by reason of a lack of jurisdiction.

According to his approach, a holding that there is some limit upon the authority of the constituent authority de facto annuls the fundamental democratic principle of the sovereignty of the people through its elected representatives. Justice Sohlberg added that this is not his view alone. The first seven Presidents of the Court, the eighth President, Aharon Barak at the outset of his judicial tenure, and a significant part of the justices who served on the Court for decades all stated, as it were: “Keep your hands off the state’s Basic Laws.

Justice Sohlberg noted that the Court majority points to various sources of authority, while there is no single source that is acceptable to them all. He was of the opinion that even according to the majority’s approach, one cannot derive from those sources that it is possible to void Basic Laws where the justices themselves are not in agreement, let alone on the basis of one vote.

Justice Sohlberg further noted that the majority opinion represents the opinion of the judiciary. As opposed to that, the constituent authority is of the opinion that not only does the Court lack the authority to void Basic Laws, but also that it lacks jurisdiction to decide the preliminary question: Is it the Court that holds the power to decide whether it has the authority to invalidate Basic Laws? Such a “conflict” between the branches of government is not played out in the legal arena, and it cannot be resolved by legal means.

As for the reasonableness doctrine, Justice Sohlberg was of the opinion that even were we to ignore the question of jurisdiction, then even according to the President (emer.), there is only one question: Does the Basic Law deny “the very existence of Israel as a Jewish and democratic state?”.  Since that is the question, the answer is near at hand: the Basic Law is a very, very far cry from falling within the compass of that narrow restriction, and more so. In any case, even if there were authority, there would be no grounds for voiding the law.

 

 

                                                                                                                                    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 7846/19

 

 

Petitioners:                  1.         Adalah Legal Center for Arab Minority Rights in Israel

                                    2.         Association for Civil Rights in Israel

 

                                                            v.

 

Respondents:              1.         State Attorney’s Office – Cyber Department

                                    2.         Attorney General

 

Requests to Join:         1.         Lori Shem Tov

                                    2.         Movement for Freedom of Information

 

Petition for order nisi

 

Israeli Supreme Court cases cited:

[1]        EA 8/21 Shachar Ben Meir, Adv., v. Likud, (Feb. 27, 2019)

[2]        EA 27/21 Yisrael Beiteinu Faction v. Shamir Systems and Operators Ltd., (Feb. 26, 2019)

[3]        AAA 3782/12 Tel Aviv-Jaffa District Commander v. Israel Internet Association, (March 24, 2013) [https://versa.cardozo.yu.edu/opinions/tel-aviv-jaffa-district-commander-v-israel-internet-association]

[4]        LCA 4447/07 Mor v. Barak I.T.T. [1995] International Telecommunications Services Corporation, IsrSC 63(3) 664 (2009)

[5]        HCJ 8600/04 Shimoni v. Prime Minister, IsrSC 59(5) 673 (2005)

[6]        HCJ 6824/07 Manaa v. Israel Tax Authority, IsrSC 64(2) 479 (2010)

[7]        HCJ 399/85 Kahana v. Broadcasting Authority Management Board, IsrSC 41(3) 255 (1987)

[8]        HCJ 5185/13 A. v. Great Rabbinical Court, (Feb. 28, 2017)

[9]        MApp 2065/13 A. v. State of Israel, (March 22,2013)

[10]      HCJ 6972/07 Akiva Laxer, Adv. v. Minister of Finance, (March 22, 2009)

[11]      HCJ 84/82 Histadrut Po’alei Agudat Yisrael v. Minister of Religious Affairs, IsrSC 37(1) 813 (1984)

[12]      HCJ 828/90 Likud Faction of the Haifa Municipal Council v. Haifa Municipal Council, IsrSC 45(1) 506 (1991)

[13]      HCJ/149 Bejarano v. Police Minister, IsrSC 2 80 (1949) [https://versa.cardozo.yu.edu/opinions/bejerano-v-police-minister]

[14]      LCrimA 10141/09 Ben Haim v. State of Israel, (March 6, 2012)

[15]      HCJ 2918/93 Kiryat Gat Municipality v. State of Israel, IsrSC 47(5) 832 (1993)

[16]      HCJ 5128/94 Federman v. Minister of Police, IsrSC 48(5) 647 (1995)

[17]      HCJ 8600/04 Chair of the Hof Azza Regional Council v. Prime Minister, IsrSC 59(5) 673 (2005)

[18]      HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel and others v. Prime Minister of Israel, (Feb. 27, 2006) [https://versa.cardozo.yu.edu/opinions/supreme-monitoring-committee-arab-affairs-israel-and-others-v-prime-minister-israel]

[19]      HCJ 144/50 Dr. Israel Sheib v. Minister of Defence, IsrSC 5 399 (1951) [https://versa.cardozo.yu.edu/opinions/sheib-v-minister-defence]

[20]      HCJ 4374/15 Movement for Quality Government v. Prime Minister, (March 27, 2016) [https://versa.cardozo.yu.edu/opinions/movement-quality-government-v-prime-minister]

[21]      CA 9183/09 Football Association Premier League Ltd. v. Anon., IsrSC 65(3) 521 (2012)

[22]      HCJ 7721/96 Israeli Insurance Adjusters Association v. Supervisor of Insurance, IsrSC 55(3) 625 (2001)

[23]      HCJ 6579/99 Filber v. State of Israel, (Nov. 1, 1999)

[24]      HCJ 551/99 Shekem Ltd. v. Director of Customs and VAT, IsrSc 54(1) 112 (1999)

[25]      5860/16 Facebook Inc. v. Ben Hamu, (May 31, 2018)

[26]      LCA 1239/19 Shaul v. Nayadli Communications Ltd., (Jan. 8, 2020)

[27]      HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel and others v. Prime Minister of Israel, IsrSC 61(1) 1 (2006) [https://versa.cardozo.yu.edu/opinions/supreme-monitoring-committee-arab-affairs-israel-and-others-v-prime-minister-israel]

[28]      HCJ 5100/94 Public Committee against Torture v. State of Israel, IsrSC 53(4) 817 (1999) [https://versa.cardozo.yu.edu/opinions/public-committee-against-torture-v-israel]

[29]      LCA 3145/99 Bank Leumi v. Hazzan, IsrSC 57(5) 385 (2003)

[30]      CA 6821/93 United Mizrahi Bank v. Migdal Cooperative Village, IsrSC 49(4) 221 (1995); IsrLR 1995 (2) [https://versa.cardozo.yu.edu/opinions/united-mizrahi-bank-v-migdal-cooperative-village]

[31]      HCJ 10203/03 Hamifkad Haleumi v. Attorney General, IsrSC 62(4) 715 [https://versa.cardozo.yu.edu/opinions/hamifkad-haleumi-v-attorney-general]

[32]      HCJ 2442/11 Haim Shtanger, Adv. v. Speaker of the Knesset, IsrSC 66(2) 640 (2013) [https://versa.cardozo.yu.edu/opinions/shtanger-v-speaker-knesset]

[33]      HCJFH 9411/00 Arco Electric Industries Ltd. v. Mayor of Rishon LeZion, IsrSC 63(3) 41 (2009)

[34]      MApp 1190/18 Ethics Committee of the Tel Aviv District of the Bar Association v. David Yedid, Adv., (March 28, 2019)

[35]      HCJ 442/71 Lansky v. Minister of the Interior, IsrSC 26(2) 337 (1972)

[36]      CA 5739/18 Operators of the Website www.oligarchescorts.com v. State of Israel, (Oct. 15, 2018)

[37]      CrimFH 7383/08 Ungerfeld v. State of Israel, (July, 11, 2011)

[38]      LCrimA 5991/13 Segal v. State of Israel, (Nov. 2, 2017)

[39]      LCrimA 7052/18 State of Israel v. Rotem, (May 5, 2020)

[40]      HCJ 4455/19 Tebeka Advocacy for Equality and Justice for Ethiopian Israelis v. Israel Police, (Jan. 25, 2021)

[41]      HCJ 1901/94 MK Landau v. Jerusalem Municipality, IsrSC 48(4) 403 (1994)

[42]      HCJ 151/11 Ruth and Emanuel Rackman Center for the Advancement of the Status of Women v. Minister of Justice, (Dec. 27, 2011)

[43]      HCJ 384/82 Pachmas Metal & Plastic, Registered Partnership from Ein Horesh v. Minister of Finance, IsrSC 37(4) 297 (1982)

 

 

The Supreme Court sitting as Hugh Court of Justice

Before: President E. Hayut, Deputy President H. Melcer, Justice A. Stein

 

 

Judgment

(April 12, 2021)

 

Deputy President H. Melcer:

1.         The petition before the Court concerns the constitutionality of the activity of the Cyber Department of the State Attorney’s office (hereinafter: the Cyber Department, or the Department) in regard to online network operators, content providers and other online platforms (hereinafter: online platform operators or operators) with whom the Department maintains contact in order to prevent publications that may violate Israeli criminal law.

2.         In the framework of the petition, The Petitioners requested that an order nisi be issued against the Respondents, ordering them to show why the Cyber Department should not immediately desist from requesting that operators “voluntarily” remove content from the network.

            I will now present the facts relevant to deciding the matter.

 

Background and summary of relevant facts

3.         In September 2015, a cyber-enforcement unit was created in the Ministry of Justice (in the framework of the State Attorney’s Office). It’s creation “derived from the need for a focused effort to confront crime and terror in cyberspace, after identifying a sharply rising trend in cybercrime” (from the 2015-2016 Summary of the State Attorney’s Office – Appendix P/1 of the petition; hereinafter: the 2015 Summary). As arises from the preliminary response of the Respondents listed in the heading, the tasks assigned to the unit, which became a department, focused upon activity intended to reduce the harms and dangers caused by crimes perpetrated online, in two separate enforcement tracks that will be described below.

 

The statutory enforcement track

4.         The first enforcement track, which is not central to the present petition, concerns proceedings conducted by the Cyber Department by virtue of the Authorities for the Prevention of Committing Crimes through use of an Internet Site Law, 5777-2017 (hereinafter: Authorities for the Prevention of Crimes Law, or the Law), whose purpose is to prevent the commission of certain offenses, or the exposure of internet users to certain offenses committed by means of internet sites, by means of judicial orders (above and hereinafter: the statutory enforcement track). The Cyber Department’s activity conducted pursuant to the Law is consistent with the classic view of criminal enforcement in which the a prosecutor, as defined by the Law (who is one of the attorneys in the Department who, in accordance with sec. 1 of the Authorities for the Prevention of Crimes Law, has been so authorized by the Attorney General) applies to a District Court judge (so authorized by the President of the District Court) for an order instructing providers of access, searches and storage of content on the internet to remove or restrict access to content appearing on various internet sites, pursuant to the authority established therefor in the Prevention of Crimes Law (sec. 2 – 4 of the Law). This authority is specific to a number of criminal offenses perpetrated on the internet, such as: organizing or conducting illegal gaming, lotteries or betting (sec. 222 of the Penal Law, 5737-1977 (hereinafter: the Penal Law)), publishing pedophilic content (sec. 214(b) of the Penal Law), publishing prostitution services (secs. 202, 205A, 205C(a), 205D of the Penal Law), trafficking in dangerous drugs (secs. 13-14 of the Dangerous Drugs Ordinance [New Version], 5773-1973), an offence under sec. 7 of the Fight Against the Phenomenon of the Use of Dangerous Substances Law, 5773-2013, and internet activity by a terrorist organization (under the Counter Terrorism Law, 5776-2016).

            In accordance with the Law, these restraining orders are contingent upon various constraints, including that a restriction of access will not be issued if the means for executing the order constitute eavesdropping under the Eavesdropping Law, 5739-1979, whose provisions apply to the matter.

5.         In addition to the aforesaid, there are additional statutory provisions that grant the courts authority to order the removal of an advertisement, or restrict the publication of certain information, which are not specifically found in the Prevention of Crimes Law (e.g., publication of the name of a complainant in regard to sex offenses (sec. 352 of the Penal Law), or a publication in contravention of the provisions of sec. 34 of the Adoption of Children Law, 5741-1981 (which prohibits publishing the identity of various actors related to the adoption procedure)). In regard to these provisions, the Cyber Department noted in its preliminary response that it only “informs” (the providers) of the fact that the offending content does not meet the restrictions under the relevant law or a judicial order issued thereunder.

6.         In their preliminary response, the Respondents emphasized that the statutory enforcement track is not comprehensive, inasmuch as there is currently no coercive enforcement track that would allow the Cyber Department to act on the internet (subject to a court order) for the removal of additional publications that constitute other criminal offences, among them: content that incites violence, terror, or racism, or content that amounts to sexual harassment and threats. In this regard, it should be noted that the Respondents and others tried to advance legislation that would have granted the courts broader authority to remove harmful content published on the net, but for various reasons, those legislative initiatives did not come to fruition (see: Prevention of Committing Crimes by Means of the Internet (Removal of Content) Bill, 5778-2018; and Removal of Content from the Internet whose Publication Constitutes an Offense Bill, 5777-2016).

            This need, and other reasons that will be presented below, led to the creation of an additional, voluntary enforcement track, which is the focus of the petition before the Court.

 

The voluntary enforcement track

7.         The absence of general, explicit legal provisions granting authority to a judicial instance to order the removal of a publication that amounts to a prima facie criminal offense (beyond the Law, which was itself enacted only on July 26, 2017) led the State Attorney’s office to formulate another, additional conception for criminal enforcement that focuses upon the offense rather than its perpetrator. In this framework, it concentrates its efforts upon network platform operators. This activity is the focus of the petition. The term network platform is a codeword for a variety of civil bodies, mostly very powerful multinational corporations that operate a variety of frameworks for net activity, including:

A.        Online social networks that allow users to communicate with and be visible to other users, and inter alia, also share information, positions, and opinions (e.g., Facebook).

B.        Online search engines that facilitate searching for and retrieving information available on the internet (e.g., Google).

C.        Providers of hosting services for building and storing various internet sites. (In accordance with a work procedure appended to the Respondents’ preliminary response, titled: “Treatment of unlawful contents published in cyberspace” (hereinafter: the Work Procedure)).

 

8.         There would not appear to be any need to discuss the centrality of the above online platforms, which in our current digital age are a center for transmitting and exchanging views, and operate the space in which that discourse occurs. In the absence of regulatory legislation in the area, they also have the power to define the boundaries of the discourse and establish, inter alia, the rules for what is permitted and prohibited in all that concerns expression and the sharing of content on the net. Accordingly, each such platform operator establishes conditions for use or service, and “community rules” that apply to and obligate those seeking to use the social network or the search engine it operates. (See Prof. Balkin’s article: Jack M. Balkin, Free Speech is a Triangle, 118 Colum. L. Rev. 2011 (2018) (hereinafter: Balkin, Triangle)).

            In the framework of the preliminary response, the Respondents presented such rules, which were brought to its attention, that prohibit publication of content, including statements of intentions to commit violent acts, or support for terrorist organizations, as well as incitement and hate speech, or information likely to infringe the privacy of others. It further arises from the material presented to us that various operators also established a general prohibition in their “community rules” upon activity that violates local law. Common to all these conditions for use (or, at least, to all the operators whose community rules were presented to us) is that every user of the online platform, or any person exposed to the publication (whether a person, a corporation or a governmental authority) is afforded the possibility of reporting that a publication violates the platform’s rules, and that the decision as to how to act after the online platform operator is informed of a publication that appears to be harmful is, apparently, given to the exclusive discretion of the platform operator.

            Thus, for example, as the Respondents present it in their preliminary response, the community standards of the Facebook social network establish that a user cannot use the end-user services for a purpose “that is unlawful, misleading, discriminatory or fraudulent”. The said company also has the power to deny or restrict access to content that constitutes a violation of the rules. In addition, the community standards of that company-operator establish various restrictions on content published on Facebook, and in regard to activity on that platform, inter alia, provisions in regard to publications that will not be permitted. Thus, for example, they establish a prohibition upon publishing threats that are likely to lead to “high-severity” violence, and declarations of intentions to commit violent acts.

            These rules generally create a “Notice and Take Down” mechanism (and see: EA 8/21 Shachar Ben Meir, Adv., v. Likud [1], para. 86 (Feb. 27, 2019); and compare: EA 27/21 Yisrael Beiteinu Faction v. Shamir Systems and Operators Ltd. [2], paras 28-29 (Feb. 26, 2019)). By virtue of this mechanism, if the network platform operators receive notice of an alleged violation, they decide whether to leave the publication or remove it. Of late, it is possible to challenge a “take down decision”, at least on Facebook, before a kind of “appeals committee” that has the authority to conclusively decide upon complaints concerning decisions to remove contents from the platform. In early 2020, the board of directors published the said appeals committees, and the rules and procedures that govern such “appeals” (see: Oversight Board Bylaws (2021); and see: Evelyn Douek, What Kind of Oversight Board Have You Given Us?, U. Chicago L. Rev. Online 1 (2020)).

9.         The Cyber Department thus operates on the above track of a “notice and take down mechanism”. In the context of the matter before us, this is carried out in a manner agreed upon between the Department and the relevant internet platform operators, according to which, when the Department takes notice of information concerning a publication that, prima facie, violates Israeli law (whether included in the Prevention of Crimes Law, or not included in that Law), the staff of the Department refers the matter to the attention of the internet platform operators, by means of a structured mechanism for reporting harmful publications, that a prima facie offense is being committed on the infrastructure that it operates. The internet platform operators, in turn, address the report and decide, at their independent discretion, how to act and what to do in regard to the said report – whether to restrict access to that publication, remove it, block the user who violated their “user rules” in regard to publication, or not to take any action. Occasionally, according to the 2015 Summary, the report leads the internet platform operators to suspend or remove the user who published the prohibited expression that was the subject of the report.

10.       The present petition concerns the initiating of the said referrals by the Cyber Department to the internet platform operators in regard to alleged offenses of the aforesaid types that are perpetrated on the net. As noted in the Respondents’ preliminary response and detailed in the Work Procedure that regulate its activities, the Cyber Department periodically receives various requests regarding publications disseminated on the internet from various governmental sources (most of the requests come from security agencies). In accordance with he Work Procedure, upon receiving the request, a preliminary examination is conducted in regard to the existence of a prima facie offence in the publication. The examiner sends its recommendation for further action, and the matter is re-examined by a designated attorney in the Department. Pursuant to the Work Procedure, in appropriate cases, the decision on the request is sent for the personal approval of the Department’s director when the request concerns a publication that relates to senior civil servants, including employees of the Ministry of Justice and judges, or when there are doubts as to the lawfulness of the publication, or where the publication raises some other material question. Additionally, when the matter falls within a departmental area of responsibility and raises a question of interpretation, the Cyber Department consults with that department. In addition to the above, prior approval by the State Attorney is required on the following matters: taking action in regard to a publication concerning an elected official, requests in regard to content that relates to or is directed at particularly senior public servants, or in precedent setting cases or case that would involve the expansion of the activities of the Cyber Department.

            The above enforcement mechanism is referred to above and hereinafter as the voluntary enforcement mechanism. It is additional to the statutory enforcement mechanism, and in general (in the appropriate cases established in the Law) precedes it and renders it superfluous when results are achieved.

 

11.       In accordance with the Work Procedure, the Cyber Department considers a request to the internet platform operators only when three cumulative conditions are met:

            A.        The content constitutes a prima facie offense under Israeli law;

            B.        The content violates the internet platform’s term of use and there are additional considerations for reporting or referring it to the internet platform, such as: the actual circulation of the publication, its severity, the date of publication, the “viral” potential of the publication, or how the publication is likely to be interpreted by those who receive it.

            C.        The balancing conducted by the Cyber Department between the values of freedom of expression and access to information on the net as opposed to the values of the constitutional right to privacy, dignity and the reputation of the subject of the publication, as well as the public interest, justifies issuing the report so that the online platform operators will consider whether to remove the publication rather than leave it on the net.

 

12.       It would be appropriate to note at this juncture that, as arises from the arguments of the parties before us, the Work Procedures (some of which also concern enforcement actions under the Prevention of Crimes Law) have not yet been published. I, therefore, find it appropriate to note, already at this stage, that I believe it would be proper that the Work Procedures be brought to light in the manner that, for example, the Attorney General’s Guidelines are published (with the exception of those parts of the Procedures that concern state security or contacts between the Department and security agencies). See: Dalit Ken-Dror Feldman & Niva Elkin-Koren, Transparency in the Digital Environment: Governmental Removal of Illegal Speech via Online Platforms, 25 Hamishpat 25, 42-43 (2020) (Hebrew) (hereinafter: Ken-Dror Fedman & Elkin-Koren).

13.       In their preliminary response, the Respondents stated that the Cyber Department’s activity in the framework of the voluntary enforcement mechanism primarily focuses on reports and requests in regard to publications concerning the activities of terrorist organizations and incitement to violence and terrorism (according to the statement, this represents some 99% of the reports referred to the internet platform operators in 2018). The reports to the internet platform operators in regard to such contents point out that such publications appearing on those platforms amount, prima facie, to offenses of incitement and terror, identification with a terrorist organization, and so forth, and would appear to violate the “community rules” of the platform. The Respondents further note in their preliminary response that it is the estimation of the security agencies that a significant part of the terrorist activity perpetrated in the course of the “knife intifada” beginning in October 2015 was influenced by increasing consumption of social-network contents that incited violence and terror. This led to a need to act to reduce exposure to those publications on internet platforms by reporting to the internet platform operators that they amounted to prima facie criminal offences and deviated from the platform’s Terms of Use.

14.       In addition, it was explained that the Department also operates in the area of harm to minors, in cooperation with the National Child Online Protection Bureau, when it reports instances of violence and crime against children and youths (that amount to prima facie offenses of threats, sexual harassment, and infringement of privacy) on the internet to the internet platform operators. According to what was submitted, the Cyber Department also sends reports in regard to sexual images and videos that constitute prima facie offenses under the Prevention of Sexual Harassment Law, 5758-1988.

15.       Another area in which the Cyber Department operates is the prevention and restriction of harmful advertising that amounts to prima facie offenses of threats, infringement of privacy, or harassment of “certain types” of civil servants, where the advertisements can potentially deter the civil servants from exercising their authority and perform their duties, as part of the defensive shield that the state affords its employees, and when required for the proper functioning of the civil service. The Respondents noted that the Cyber Department acts with “great restraint” in this area, in view of the importance of public accountability of civil servants and the civil service in general. Thus, reports in this area are sent only in “the most extreme cases”, and at times, only after obtaining the consent of the State Attorney and given the existence of a real threat of harm to the public interest and the proper functioning of the civil service (we should note here that in all that relates to harmful publications against judges, the Courts Administration established Procedure 12-2019 of the Administrator of the Courts in the matter of “Work Procedures and Supervision for Treating Harmful Publications on the Internet” (2019), which is intended to promote, in cooperation with the Cyber Department, the removal or restriction of content that amounts to danger, humiliation, debasement, or harm to holders of judicial appointments (contempt of court constitutes an offense under sec. 255 of the Penal Law).

16.       Lastly, the Respondents’ preliminary response noted that the Cyber Department also acts to protect the integrity of Knesset elections. Thus, for example, in the last elections (for the 21^st and 22^nd Knessets), which took place after the Department was established, it was agreed – with the joint consent of the Central Elections Committee and the Attorney General – that reports would be sent to internet platform operators in regard to accounts of computer-generated fictitious users (“bots”), particularly when the identity of the person operating them (if there is one) is unknown, and in regard to fraudulent user accounts or human impersonators. All of the above was carried out in special circumstances and under restrictive conditions established “with great caution”. It is important to note in this regard that in all that concerns voluntary enforcement actions connected to the election process, the Department’s referrals concern technological actions prohibited by the criminal law, and not publications that, by virtue of their content, amount to prima facie offenses, and for the enforcement of restraining orders by virtue of sec. 17B of the Election (Means of Propaganda) Law, 5719-1959.

17.       There would not appear to be any disagreement among the parties as to the dimensions and effectiveness of the activities of the Cyber Department. As noted in the Cyber Department’s reports, upon which the parties rely: in 2016, the Department sent 2,241 reports, regarding which 76.5% of the publications were removed (in whole or in part); in 2017, reports were sent concerning 12,351 publications, regarding which 88% of the publications were removed; in 2018, reports were sent concerning 14,283 publications, of which some 92% of the reported publications were removed; in 2019, 19,606 reports were sent, regarding which some 90% of the reported publications were removed. It should be noted, as the Petitioners argue in their response, that it cannot be inferred from this that the data reflects the number of reports or requests for removal of content, inasmuch as it is possible that each said report comprised more than one link to harmful content (in fact, the 2015 Summary Report notes that, at times, each such report includes tens and even hundreds of links).

            The above data also demonstrate the widening of the phenomenon of prohibited content on the networks.

            As for the identity of the internet platform operators to whom the Respondents send requests – the Cyber Department’s reports show that in 2018, 87% of the reports were sent to Facebook, 8% to Twitter, and the remainder were sent to other internet platform operators (e.g., YouTube, Instagram, and Google).

 

Arguments of the parties in the petition before the Court

18.       This petition was filed after the requests sent by the Petitioners over the course of the last few years to bring about the cessation of the Respondents’ voluntary enforcement mechanism did not succeed. In the framework of the petition, the Petitioners argue that the manner in which the mechanism is employed can potentially infringe the constitutional rights to due process and freedom of expression, while not meeting the conditions of the “Limitations Clause” established in sec. 8 of Basic Law: Human Dignity and Liberty. Their main argument in this regard concerns the lack of express statutory authorization to act in this manner, such that the voluntary enforcement mechanism operates, in their opinion, in breach of fundamental principles of constitutional and administrative law.  In this regard, it is further argued that we are concerned with a mechanism that grants the prosecution (the State Attorney’s Office) broad authority to delineate the bounds of freedom of expression, in that it is the Department that decides that certain content is unlawful, without turning to the courts and without granting a right to be heard.

            In the Petitioners’ view, it is uncontestable that a referral initiated by the Respondents to the internet platform operators for the purpose of removing content is, in fact, governmental activity that requires express statutory authorization, inasmuch as even if the Cyber Department’s action does not amount to a coercive order, every action by the Department constitutes a governmental action that requires authorization. In the absence of such authorization, the Court must order the cessation of the Cyber Department’s activity, even without a showing of the extent of the violation of the protected rights and the activity’s conformance to the other conditions of the Limitations Clause established in sec. 8 of Basic Law: Human Dignity and Liberty.

            In the support of their arguments, the Petitioners referred to two petitions that, in their view, treated of related subjects, as follows:

            The first is AAA 3782/12 Tel Aviv-Jaffa District Commander v. Israel Internet Association [3] (hereinafter: the Israel Internet Association case), which held (per Justice U. Vogelman, President A. Grunis concurring, Justice N. Sohlberg dissenting) that the authority of a police district commissioner to order the closure of a gambling site does not extend to internet providers in regard to an online gambling website that violated sec. 229(a)(1) of the Penal Law (as it then stood), inasmuch as the provision of the said law does not expressly grant statutory authority to the District Commissioner to order third parties (providers of access who are not the website operators) to block an online gambling website.

            The second is LCA 4447/07 Mor v. Barak I.T.T. [1995] International Telecommunications Services Corporation [4] (hereinafter: the Mor case), which held that in the absence of a legislative framework that creates a possibility for ordering a provider of internet access to expose the identity of an anonymous user, it should not be pursued by “judicial legislation” (see, ibid., at p. 688).

19.       As for the possibility that the Cyber Departments authority to act in a “voluntary” manner is granted by virtue of the government’s residual power under sec. 32 of Basic Law: The Government, the Petitioners’ take the view that such authority does not apply to cases in which the exercise of the authority results in a violation of basic rights. In this regard, they referred to HCJ 8600/04 Shimoni v. Prime Minister [5], 687, and HCJ 6824/07 Manaa v. Tax Authority [6] (hereinafter: the Manaa case) (regarding the enforcement authority). In addition, the Petitioners also rejected the possibility that the Cyber Department’s authority is granted by virtue of the auxiliary powers set out in sec. 17(b) of the Interpretation Law, 5741-1981 (hereinafter: the Interpretation Law), which provides: “Any empowerment to do or enforce the doing of something implies the conferment of  auxiliary powers reasonably required therefor”. In the opinion of the Petitioners, that provision cannot support the Respondents, inasmuch as in the framework of the reports that the Department sends, it, in practice, trespasses the boundaries of the courts, which alone, according to the Petitioners, hold the authority to decide, after hearing the parties, whether or not a particular publication constitutes a crime.

20.       In addition to the above, the Petitioners also argue extensively in regard to the manner in which, in their opinion, the voluntary enforcement mechanism violates constitutional basic rights, first and foremost, the right to freedom of expression, which they believe, under the case law of this Court, is broad enough to encompass even harmful expression that rises to the level of incitement to violence or racism. In this regard, they cited HCJ 399/85 Kahana v.  Broadcasting Authority Management Board [7]. In this regard, it is argued that removing and restricting the said publications not only prevents the publisher from expressing his opinion freely, but also harms the other users of the internet online platforms due to restricting their access to the information that has been restricted or removed. They also argue that the voluntary enforcement mechanism is also indicative of a violation of the separation of powers inasmuch as it represents a situation in which the “last word” in all that regards the lawfulness of any publication rests in the hands of an administrative agency or the internet platform operators, and not the court, which is normally supposed to decide such matters. It is further argued that removal of the publication by the internet platform operators (pursuant to a request by the Cyber Department) constitutes a violation of the right of users to due process. Moreover, the Petitioners argue that there are additional defects in the Respondents’ activities, such as: not maintaining an appropriate record in regard to publications for which reports were sent by the Department to internet platform operators.

21.       As opposed to what is argued in the petition, the Respondents are of the opinion that the enforcement procedure that is the subject of the petition is a completely voluntary procedure that should not be seen as a governmental act, per se, and that the discretion in regard to removal or other steps pursuant to the report is entirely in the hands of the internet platform operators alone (inter alia, the Respondents rely in this regard upon HCJ 5185/13 A. v. Great Rabbinical Court [8], which treats of the “Rabbeinu Tam sanctions”[1] (hereinafter: the Rabbeinu Tam Sanctions Affair)). This argument was expanded upon elsewhere by the founder and head of the Cyber Department, Dr. Haim Vismonski, who said as follows:

In practice, an act on the voluntary-consensual level is not an exercise of authority in the sense of an order or an obligatory demand. In practice, it is a request based upon the understanding that the service provider will examine it in accordance with its own terms of use and criteria. (Haim Vismonski, Alternative Enforcement of Expression Offenses in Cyberspace, Law, Society & Culture 691, 725 (2018) (Hebrew).

            The Respondents further point to the unique advantages of the Cyber Department over persons (harmed individuals) or other bodies that might serve as reporters of offenses of the type under discussion in cybernetic space, and the great benefit of the Department’s actions for the public interest. It is argued in this regard that in view of the fact that the Department is a “repeating player” that is proficient in the terms of use of the online platforms, and keeps abreast of changes to those terms from time to time, it enjoys an inherent advantage and reliability in operating the voluntary track. It is, therefore, appropriate that it speak on behalf of other governmental bodies, as well as for plain citizens, who cannot contend on their own with internet platform operators and with those who abuse the platforms or access to them. It is thus argued that the Department serves the public in general. In this regard, the Respondents emphasize that the referrals to internet platform operators are made only when the publications meet the criteria set out in para. 11 above, and when it is appears that the publications conspicuously violate the Terms of Use of the online platforms.

22.       Moreover, the Respondents point out that the Cyber Department has been granted the status of “reliable reporter” by several of those internet platform operators, which gives examination of the Department’s reports precedence over others, and the speed of the response results in reducing the harm (however, according to the Respondents, that does not influence the manner of examining the report submitted to the internet platform). In addition, the Respondents note that due to its nature, in view of the resources and significant knowledge at the disposal of the various governmental organs, it is important to maintain the voluntary enforcement mechanism as a means for which there is currently no alternative for reporting and acting against acts of impersonation, fraud or other criminal offenses perpetrated on the internet. Moreover, due to the location of such criminal acts – generally beyond the borders of the state – and given the limited international judicial authority, in the absence of the voluntary enforcement track, “bad actors” in cyberspace would continue to succeed and their acts would not be subject to enforcement.

23.       Parenthetically, but not of marginal importance, the Respondents argue that the petition should be dismissed for not meeting the threshold requirements for filing a petition due to a substantial factual deficiency and for not joining relevant respondents – the internet platform operators. The Respondents argue that joining those parties could shed light on the independent discretion that they exercise in regard to the Department’s referrals, as well as other subjects comprised by the petition, which will be explained below.

 

Additional developments

24.       Following the hearing of the parties to the petition on Aug. 3, 2020, we ordered the Respondents to supplement their arguments, inter alia, in regard to parallel arrangements in other countries.

25.       The Respondents did so, and in that context, presenting examples from comparative law, they reiterated their arguments that internet platform operators have broad discretion in deciding whether or not to remove publications, and that the Respondents’ authority to act in the framework of the voluntary mechanism is grounded in their power to enforce the rule of law and to protect the public interest. Therefore, in their view, they are permitted to act to bring about the removal of harmful internet publications that appear to violate criminal law, and that this is in accordance with the auxiliary power granted to them as an administrative agency (in our case, in reliance upon sec. 17(b) of the Interpretation Law). The Respondents also repeated their arguments that the reporting of publications overwhelmingly concerns instances of expression that can harm state security, and that the referrals are made subject to the fulfilment of a number of cumulative criteria, demonstrating that the governmental agencies and the State Attorney’s Office will only act in this area in exceptional, extreme circumstances.

26.       Turning to comparative law, it is argued that a number of democratic states and international bodies also address this subject through voluntary enforcement, without any specific, express authority in primary legislation, and that the world now agrees that this is the only effective means for the removal of violating publications from the internet, and that otherwise a situation of total anarchy would emerge, in which everyone would do as he sees fit, while violating local criminal law. In this regard, it is further argued that international arrangements and regulatory guidelines applicable under European law serve as the source of authority for voluntary enforcement by states and various bodies in the European Union in the matter of removing harmful publications from the internet. Examples of this were provided from France, Belgium, Spain, Germany, and Great Britain.

            Thus, for example, in 2016, the European Union signed an arrangement with Facebook, Microsoft, Twitter, and YouTube that outlines the treatment of hate publications by means of the internal reporting mechanisms of the internet platforms. These arrangements were later joined by such companies as Instagram, Snapchat, and TikTok. Pursuant to the arrangement, various bodies in the European Union were recognized as “reliable reporters” – mostly third-sector organizations, and some state agencies. According to the Respondents, this arrangement constitutes a framework for the activity of European states on the voluntary track, although some of them have specific, internal arrangements.

            The Respondents also noted the existence of coercive arrangements in some European states, which do not refer to the possibility of voluntary action even though it takes place, such as the activity of the Swiss Federal Office of Police, for example (in Belgium, there is a governmental agency whose authorities are defined in a cooperation agreement between the federal government and the districts and communities. This agreement grants the governmental agency general authority “to take legal action”).

            As opposed to this, it was noted that the law enforcement agency of the European Union, Europol, acts on the voluntary level by virtue of express authorization in reg. 4(1)(m) of Europol Regulation 2016/794. In France, the Central Office for the Fight against Crime linked to Information Technology and Communication (OCLCTIC) is authorized by sec. 1 of an order pursuant to the counter-terrorism law (loi n° 2004-575 du 21 juin 2004, amended in 2014) to request that search engines or hosting service providers remove content that amounts to certain criminal offenses, such as encouraging terror or pedophilia, without need for a judicial order.

27.       At this point we should note that, prior to the hearing, requests to join the proceedings were filed by Lori Shem Tov and the Movement for Freedom of Information (hereinafter: the Movement), as noted in the heading.

            The request of the Movement (which sought to join as an amicus curiae) is primarily based upon the argument that the question of authority at the focus of the petition should also be examined in light of the fact that, according to the Movement, the Cyber Department operates without transparency, and this is expressed by a lack of documentation of the content of the publications that the Cyber Department seeks to remove (according to the Movement, this can be inferred from the reply it received to its freedom of information request of Nov. 1, 2019). It is argued that this, inter alia, raises a fear that the Respondents’ referrals are “slanted and tainted by discrimination”, or arise, in part, from imprecise translation of the publications concerned. In addition, it is argued that there is a lack of clear guidelines for structuring the Cyber Department’s discretion prior to submitting a report to the internet platform operators. Moreover, the Movement argues that the transparency reports published by the Department are insufficient, and that they should include much more data, such as: the characteristics of the report sent to the operators and the demands therein (whether the agency requests the blocking of content, or, for example, also blocking the user); noting the relationship of the publications to the residents of the state, insofar as possible; clarification of whether the Department acts when the policy rules of the platform are violated, even if the publication does not constitute an offence, and so on.

            Lori Shem Tov (who did not attend the hearing before the Court, although she was invited), noted in her request to join that she wished to join as a petitioner because she claims to have been harmed by the conduct of the Cyber Department, and that she believes that the Department’s actions led to the removal of publications from the website she operates, on the claim that they constituted prima facie offenses against public servants.

28.       After examining the said requests to join, we decided to suffice with examining them without granting the requests to join, inasmuch as, inter alia, we have in any case decided to deny the petition for the reasons that will be set forth below. Moreover, in regard to the said requests to join, including the operators as respondents is absolutely necessary, and the fact that they chose not to do so is a fundamental defect under the circumstances.

 

Discussion and Decision

29.       After examining the parties’ briefs and appended documents, including the Cyber Department’s Work Procedure, and after hearing the arguments of the parties’ attorneys in the hearing and reading the supplementary briefs, I am of the opinion that the petition should be denied, subject to a number of comments for the future that the Respondents should consider, and so I recommend to the President and my colleague.

30.       Before delving into the various aspects that must be decided, I will note fundamental principles, which are no longer very new, in regard to the arena addressed by the petition, in which the Cyber Department operates – the internet. I will not elaborate upon the great blessing bestowed by technology in general, and upon the fundamental changes to the world and humanity following the arrival of online platforms – the narrowing of gaps, the availability of various services to individuals and society, the empowerment of marginalized populations, the enhancement of freedom of information, communication, expression, the press and association by connecting the close to the far, etc. (see the groundbreaking article by Prof. Niva Elkin-Koren, The New Intermediaries in the Virtual Public Forum, 6 Mishpat Umimshal pp. 381-420 (2003) (Hebrew)).

            As opposed to this, the petition before the Court treats of the manner in which the virtual space provided by the internet can serve as fertile ground for poisonous plants, weeds, and rotten fruit (compare: MApp 2065/13 A. v. State of Israel [9]). In this regard, the internet provides malicious actors with a platform for perpetrating crimes by “remote control”, in far wider dissemination than was available in the “old” world prior to the internet revolution, while the possible ill effects of their acts may embrace sectors and communities that were not previously exposed to the harmful activity.

            It would appear that this new sphere of activity therefore also requires means of enforcement that differ from the previously accepted methods, which hold the potential for quick, effective frustration of criminal activity on the internet. However, we should emphasize that this petition does not primarily concern adapting the means to the objective and examining the possibility that granting court orders in appropriate cases (pursuant to the statutory enforcement track) constitutes a less harmful means than the voluntary enforcement mechanism.

            The petition before us concerns the question of the authority to conduct the voluntary activity in the manner and form employed by the Cyber Department. I will, therefore, address these arguments in their order, below, but I will first examine the preliminary arguments raised against the petitioners, which claimed that the petition lacks a sufficient factual foundation, and that the fact that the Petitioners did not join the internet platform operators as respondents requires the dismissal of the petition.

Insufficient Factual Grounds

31.       In my opinion, it was possible to dismiss the petition on the basis of the absence of sufficient factual grounds for the argument that the Department acts without authority.

            In practice, the data submitted with the petition do not testify to the scope of the harm to the values of freedom of speech and access to information (to the extent that they do not amount to a crime). Of course, no one denies that the Cyber Department’s activity may ultimately cause the removal of various criminal publications from the internet. However, even if that is so, it is not at all clear to what extent the Cyber Department’s voluntary enforcement activity leads to a violation of protected rights, including the freedom of speech of the holders of the rights, in regard to publications that are not unlawful. There is no need to elaborate upon the fact that a fundamental condition of the protection granted under Basic Law: Human Dignity and Liberty is that the object of the claimed harm to the constitutional right be a “person” (see sec. 1 of the Basic Law, which speaks of the fundamental rights of the human being in Israel, and the end of sec. 2, which establishes: “There shall be no violation of the life, body or dignity of any person as such. (emphasis added – H.M.)). The reality provided by the internet shows that, at times, in order to prove that a fundamental right was violated (which is at the heart of the Petitioners’ arguments, along with the claim of lack of authority), the petitioner must show that the object of the harm is, indeed, a “person” (and in my view, impersonators of people, like avatars and bots, are excluded).

            In other words, avatars and robots do not enjoy human rights, not to mention that some of those robots are not even operated by humans but by artificial intelligence. In this regard, see: Ryan Abbot, The Reasonable Robot: Artificial Intelligence and the Law (2020); Harry Surden, Artificial Intelligence and Law: An Overview, 35 Ga. St. U. L. Rev. 1305 (2019); Ryan Calo, Artificial Intelligence Policy: A Primer and Roadmap, 51 U.C.D. L. Rev. 399 (2017).

32.       In the matter before us, concerning the area of the internet in which varied and various entities, organized in different configurations, operate (among them, foreign governmental actors, “bot” networks, forged accounts, and impersonators), a minimal evidentiary basis for a claimed violation of freedom of expression is required, particularly in regard to a publication that does not constitute a crime. Note that I do not think that the voluntary enforcement actions of the Cyber Department are incapable of potentially violating the activity of certain individuals, whether in Israel or abroad. However, in the absence of a specific example by the Petitioners that such voluntary enforcement activities, as such, affected any of them (assuming that no prima facie offense was committed), it is difficult to accept the Petitioners’ argument that the entirety of the Cyber Department’s voluntary enforcement activities harm the Petitioners as such, and it is difficult to identify which aspects of the Department’s many activities require express statutory authority (compare: HCJ 6972/07 Akiva Laxer,Adv. v. Minister of Finance [10]). In this sense, the petition is not ripe.

33.       As described above, it appears from the Cyber Department’s data that the overwhelming majority of referrals by the Department to online platform operators concerns publications related to terrorist acts and extreme violence. In my view, the fear expressed in the Petitioners’ arguments that under the cover of this enforcement activity – which almost entirely concerns the protection of national security – the government also contends with political messages protected within the bounds of freedom of expression was not proven. If such were the case, it is clear that express, concrete authorization would be required for the agency’s actions in such circumstances. The problem is that other than the Petitioners’ general arguments of principle, no trace of evidence was brought for the conjecture that publications that pose a challenge to freedom of speech were blocked under the excuse of preventing offenses of incitement to violence or terror. Moreover, in the absence of contradictory evidence, it may well be the case that a large part of the Cyber Department’s activity concerns publications that are not produced by any human subject, but rather a computerized object (robot), or a widespread system of hostile users who seek to promote various unlawful messages.

34.       Another uncertainty, which also cannot be examined in the framework of the present petition due to a lack of adequate data and the fact that the point was not argued by the parties, is the scope of the applicability of Basic Law: Human Dignity and Liberty to expression concerning Israel by users who are not citizens or residents of Israel, or who live in the country or have some other territorial connection to it. In my view, it is highly doubtful if, for example, a publication by a person outside of Israel that calls for violent action against the Israeli embassy in his country, or against another Israeli target there, is indeed a publication that must be examined in accordance with the constitutional balancing required under of Basic Law: Human Dignity and Liberty. This issue was not developed by the parties, although it may be that the reason for the failure to address this issue also derives from the lack of data held by the parties, or the difficulty of identifying the locale and name of a person publishing on the internet.

35.       The above notwithstanding, I did not find that the petition should be dismissed in limine for an insufficiency of factual foundation, but it did make it difficult to issue an order nisi over the entire matter, and contributed to the dismissal of the petition for other reasons that will be presented below.

Failure to join relevant respondents

36.       Another reason for why it may have been correct to dismiss the petition in limine concerns the failure to join relevant respondents. As noted above, the Petitioners (and those requesting to join) refrained from naming the online platform operators as respondents, and it would seem that this is to their detriment. As will be explained, the question of the exercise of discretion by those bodies is of no minor consequence for the questions at the focus of these proceedings. The issue of whether reporting harmful publications is a governmental act is significantly contingent upon how and to what extent the multi-national operators are independent, and whether their discretion relies upon their own local law or upon Israeli law, or only upon their own Terms of Use.

37.       In the course of the hearing, the Petitioners were asked to explain the failure to name the online platform operators as respondents, but they provided no adequate explanation. In my opinion, that was sufficient for dismissing the petition in limine, inasmuch as had the online platform operators been joined as respondents, their arguments could have shed light on some of the Petitioners’ central arguments.

            Adding Respondents at a later stage, after the Petitioners knowingly chose not to do so, is unacceptable (and compare: HCJ 84/82 Histadrut Po’alei Agudat Yisrael v. Minister of Religious Affairs [11]; HCJ 828/90 Likud Faction of the Haifa Municipal Council v. Haifa Municipal Council [12]; and see: Raanan Har-Zahav, Procedure in the High Court of Justice, 34-35 (1991)).

38.       The preliminary defects in the petition are, indeed, severe. However, due to the substantive arguments raised in regard to the activity of the Cyber Department, the importance of the matters raised in the petition, their consequences, and their raising a matter of first impression, I will address the Petitioners’ arguments on the merits so as not to leave the constitutional and administrative law issues hanging in midair.

            I will, therefore, address the issues from first to last.

The question of authority

39.       The main argument raised by this petition concerns the constitutionality of the voluntary enforcement policy in the absence of express statutory authority, in the opinion of the Petitioners. This argument derives from the principle of rule of law, which establishes (inter alia) that a governmental agency must act on the basis of statutory norms (see: HCJ 1/49 Bejarano v. Police Minister [13]; LCrimA 10141/09 Ben Haim v. State of Israel [14]). It is argued that the Cyber Department’s actions to remove what it deems unlawful forms of expression by means of reporting them to the online platform operators constitute governmental enforcement that is prohibited in the absence of express statutory authorization, in view of the rule-of-law principle and the principle of administrative legality.

            The Petitioners also argued that this situation at least appears to contravene the normal criminal-procedure distinction between the investigative authority and the prosecution. Thus, for example, sec. 59 of the Criminal Procedure Law [New Version], 5742-1982, authorizes the police to conduct investigations, while sec. 60 of the said law instructs the police to deliver the investigative material to the duly authorized prosecutor. In the present case, it is argued that the examination is conducted by the Cyber Department (in a manner somewhat akin to the police authority to initiate an investigation if it becomes aware of a crime, pursuant to the said sec. 59), and argued that it is also the “prosecutor”, i.e., the body that applies to the relevant private body (the online platform operators) to exercise its discretion whether or not to remove the publication.

40.       As described above, the Government Respondents countered in this regard that it is difficult to view the Cyber Department’s actions as constituting an exercise of governmental power, inasmuch as the online platform operators exercise exclusive discretion in the matter, whereas its actions are limited to a voluntary application to the online platform operators, which therefore lacks the force of an administrative act of consequence.

41.       On the face of it, the Respondents would appear to be correct that in the absence of a coercive governmental act, the question of authority does not generally arise. However, it seems to me that the Respondents erred in categorizing the Cyber Department’s activity and its initiation of referrals as acts that lack any governmental force, and their opinion that, as such, they do not fall within the purview of the principle of administrative legality, and do not require any statutory authorization. In my opinion, the Respondents were imprecise in sufficing with laconically citing the fact that we are concerned with a voluntary act for which the discretion on enforcement is entirely left to an external (private) body. Nevertheless, I am of the opinion that the Cyber Department’s activity does, at present, have adequate authorization.

            I will clarify this point.

42.       To identify what constitutes a “governmental act” that is subject to the principles of administrative law, it not enough that the act in question is seemingly performed “voluntarily”, or that it, itself, lacks any operative force. Indeed, as I will explain, an examination of the very many functions fulfilled by the public administration reveals that many of them are not addressed in specific legislation, yet there is no question that they are, nevertheless, at the heart of the role that a properly functioning state is required to fulfil, and therefore have a statutory basis.

In his book Administrative Authority, vol. I, 419 (2^nd expanded ed., 2010) (Hebrew) (hereinafter: Zamir), Prof. Zamir describes this as follows:

In practice, the scope of authority granted to the government is far broader than the scope of the specific authorities that the statutes expressly grant it. Many of the functions imposed upon the government, among them basic functions of any government, and the authority required to carry them out, are not mentioned at all in the law. This is dictated by reality. The legislature cannot, and is therefore not asked, to arrange all of the all-embracing areas of governmental activity, and expressly establish the necessary authority for each individual area. The result is that the government conducts a wide-ranging variety activity that lacks an express foothold in the law. Such are, for example, almost all of the activities of the Ministry of Foreign Affairs, the Ministry of Construction and Housing, the Ministry of Immigrant Absorption, and the Ministry of Culture. Other ministries largely act on the basis of laws, but even among those, you hardly find a ministry whose functions are not partly – whether to a small or large extent – performed without express support in the law. Here are but a few of the many examples: The Government Press Office, professional training institutions, tourist information offices, research institutes, importing essential food items, The Institute of Advanced Judicial Studies. Sometimes, such activity is ancillary, so to speak, to some other activity, as if it were an auxiliary function of an activity authorized by law, but not infrequently, it stands alone, apparently without any supporting law. How does this situation conform with the principle of administrative legality? The answer is provided by sec. 32 of Basic Law: The Government. This section establishes: “The Government is authorized to perform in the name of the State, subject to all laws, any act, which is not assigned by law to another authority” (ibid., pp. 418-419; emphasis added – H.M.).

            And see: HCJ 2918/93 Kiryat Gat Municipality v. State of Israel [15], 841; HCJ 5128/94 Federman v. Minister of Police [16], 651, per President Shamgar, before an expanded panel (hereinafter: the Federman case); HCJ 8600/04 Chair of the Hof Azza Regional Council v. Prime Minister [17], 682-683; HCJ 11163/03 Supreme Monitoring Committee v. Prime Minister [18], para. 6 of the opinion of Deputy President M. Cheshin; and also see: Margit Cohn, General Powers of the Executive Branch, (2002) (Hebrew) (hereinafter: Cohn).

            We thus see that in order to evaluate the character and nature of the administrative activity before us, we must review some of the case law that constitutes the foundation of our constitutional and administrative system.

43.       In categorizing the various administrative authorities, Prof. Hans Klinghoffer included the existence of a “disguised administrative act”. Such activity can be defined as a governmental act performed under the cloak of a non-coercive governmental act, where in fact, the substance of the act – or at least the way it is understood by those to whom it is addressed – is a governmental act of coercive significance, or as Klinghoffer expresses it:

A unique type of unclear act is the disguised act. When an agency does not see a legal path for achieving its desired objective, it will, at times, try to present the action in a disguised manner in order to increase the chances for it to be interpreted as a lawful act. Our judicature is unwilling to accept such trickery (see: Hans Klinghoffer, Administrative Law, pp. 109-111 (1957) (Hebrew), and in general on the theory of administrative acts, pp. 82-117).

            An example of this can be found in HCJ 144/50 Sheib v. Minister of Defence [19] (hereinafter: the Sheib case). In that famous case, the Director of the Department of Education in the Ministry of Education demanded that the administration of a school not employ the petitioner due to the opposition of the (then) Prime Minister and Minister of Defense (David Ben Gurion) (due to his position in regard to the petitioner’s political activity). What is relevant to the matter before us is one of the arguments made by the respondents in that case, who admitted that the order not to employ the petitioner was not based upon express legislation, while pointing out that this act was not obligatory, but rather only a (“voluntary”) request that the school to which it was sent could have declined.

            The Court refused to accept the position of the respondents, stating:

As I have said, the respondent admitted that his action was not based upon law, and he therefore emphasised the nature of his approach to the principals of private schools, stating that he only “requested” them not to employ teachers in their schools save with the consent of the Inspector. It is not necessary to say that a “request” such as this is tantamount to an order at least in so far as the petitioner before us is concerned, because for reasons which are self-evident, schools would tend to yield to a “request” of this kind, as the present case proves. It is possible that had the respondent approached the principals of schools in a form that was less compelling, and had emphasised that his request had no binding force, it would have been difficult to find any fault with his approach. It is clear to me, however, from the evidence of the respondent in his affidavit, that he in fact did not employ language which gave the principals any choice – that if they so wished they could follow his opinion, and if not they could disregard it and employ a teacher against his will. In this case the respondent did not set out in the circular that the principals of schools had a choice in the matter. I have no doubt, therefore, that the respondent exceeded his authority in approaching the principals of schools (ibid., p. 419 [para. 9 of the opinion of Justice Witkon] (emphasis added – H.M.)).

            It would appear from the above that had it concerned a non-obligatory request, “it would have been difficult to find any fault with his approach”. However, it is clear from the justice’s statement (in the section in italics) that even if it were a “voluntary” request, as long as the addressee will “tend” to “yield” and comply with the request, such a request can be viewed as a governmental act (compare: the Rabbeinu Tam Sanctions Affair in para. 1 of the opinion of President M. Naor, and para. 5 of the opinion of Justice I. Amit).

44.       However, it is important to make it clear that the case before us is different for several reasons:

            First, since not even initial evidentiary grounds were presented to rebut the presumption of administrative regularity, it can be assumed that the Cyber Department’s referrals to online platform operators are, indeed, conducted in accordance with the Department’s understanding that this only constitutes reporting that does not involve any element of coercion of the online platform operators (in this regard, see: Daphne Barak-Erez, Citizen, Subject, Consumer – Law and Government in a Changing State (2012) (Hebrew)).

            I would also note in this regard what is stated in sec. 6 of the Cyber Department’s Work Procedure, which instructs as follows:

In all that regards referrals on the voluntary level, no demand should be presented to the online platform for the removal of content, restriction of access to it, and so forth (emphasis added – H.M.).

            Second, the “relationship” before us is, indeed, distinguishable to no small degree from the example presented above (the Sheib case). In the present case, the online platform operators are very powerful multi-national entities that appear to act independently, that exercise their own independent discretion, and that decide how to act under the circumstances of the matter. Therefore, the voluntariness involved in the Department’s referral, and the manner of the exercise of independent discretion of those entities is qualitatively different from what occurred in the Sheib case.

45.       Nevertheless, I cannot accept the Respondents’ position on this point in its entirety. In my view, the referrals to the online platform operators should be seen as a type of governmental act. My position, which I will explain below, is that the interaction among the state, the online platform operators, and the end users can be categorized as a unique relationship in which the “geometric place” of the state is on one of the sides of a triangle connecting the above three entities, and in this framework, the state has no inconsiderable influence (see: Balkin, Triangle).

            For convenience, I have attached Chart 1 – the diagram that Prof. Balkin presented in his article, and Chart 2, which simplifies it for our needs. The diagrams map the relationship triangle among the end user, the platform operators, and the governmental authorities, and describe the relationship and power structure among these entities in regard to “classic” regulation in which the state acts directly opposite the individual in matters of freedom of expression, and the “new” regulation that shapes the relationship between the state and the online networks, where the state seeks to encourage the platforms to conduct their own supervision of unlawful expression by private governance. This has developed over the years, and shapes the relationship between the users of the platform and the supervision of expression and information by the former (what I noted as the Terms of Use and the “community rules”).

 

 

 

 

Diagram 1:

(See: Balkin, Triangle, p. 2014).

Diagram 2:

 

 

 

 

 

           

In my opinion, in this situation in which there is a possibility that the voluntary referrals of the Cyber Department are a trigger for the “enforcement” actions of the online platform operators (as noted, we do not have any data in this regard), and that the Department’s referrals may influence the discretion of the online platform operators, there is a need for some statutory authorization for the said cooperation.

            I will explain this in detail below.

“Inverse Regulation” and the Activity of the Cyber Department

46.       Normally, it is the state that regulates and directs the conduct of the individuals and entities that exist within it. The accepted means for this are legally operative norms (like primary and secondary legislation). Frequently, the state also chooses to regulate markets and various spheres of activity of “private players” by establishing rules that apply only to those markets, direct the activity of the parties that operate within them, and even conducts supervision and enforcement over such activity. However, at times, the state permits an organizing body to police itself, subject to the permission of the governmental authority (as is the case, for example, in regard to the Tel Aviv Stock Exchange). This practice, in its various aspects, is one of the meanings of the concept “regulation”, which has significantly developed over the last years (on regulation as a separate conceptual framework in Israeli law, see recently: Neta Ziv, Judicial Review meets Regulation: A Preliminary Conceptual Mapping, Elyakim Rubinstein Volume, 1125, 1130-1136 (2021) (Hebrew) (hereinafter: Neta Ziv, Regulation), and also see: Cass R. Sunstein, After the Rights Revolution – Reconceiving the Regulatory State (1990); Ayelet Hochman, Alon Jasper & Dan Largman, Talking about Regulation: The Term “Regulation” and its Role in Israeli Law, The Governance of Regulation: Law and Policy Law, Society and Culture, Yishai Blank, Roy Kreitner & David Levi-Faur (eds.), 47, 48 (2016) Hebrew); Sharon Yadin, Regulation: Administrative Law in the Age of Regulatory Contracts, 21-28 (2016) (Hebrew) (hereinafter: Yadin).

            By creating rules that are designed ad hoc for a sphere of activity, regulation that sought to direct the players in a market sphere by means of a system of rules intended to direct the parties subject to it in a “vertical manner” gained prominence. In this manner, rules were created for directing such markets as health, commerce, savings, insurance, banking, and energy. These rules, which include primary legislation, and at times, directives and orders issued by the regulatory authority in the framework of regulations, are often accompanied by various mechanisms for supervision and post facto enforcement of the applicable arrangements. As Prof. Neta Ziv points out, the move to regulation reflects a change in the role of the executive branch, primarily in distributing new functions and powers between the state and the non-state arena, where, in general, the regulatory rules define the means for the government’s exercise of power in regard to the supervised body (individual or corporate), and employ language, terminology and internal logic that can be identified as a distinct field of knowledge (see: Neta Ziv, Regulation, p. 1128).

            The regulatory model described above reflects regulation in its primary sense, known as “command and control”, which is the classic model in which the moderator is positioned “above” the players in a particular sector, directing their actions, and enforcing post facto the rules that it or the legislature established (for definitions of the accepted model of “command and control”, see: Neta Ziv, Regulation, p. 1142).

            However, over the years, a variety of more sophisticated models of regulation developed, which apply “softer” methods of enforcement. This is the “new regulation”. Thus, for example, beginning in the last century, we see the development of self-regulation in which the regulator “recommends” that the “market players” adopt a general policy as a (non-obligatory) condition for the proper administration of the particular market (on “the new regulation”, see: Yadin, pp. 21-32; Sharon Yadin, Miscommunication: Between Public Interest and Private Interest in the Regulation of Channel 10, 8 Haifa Law Review (Din Udvarim) 391, 409-410 (2015); Neta Ziv, Regulation, pp. 1142-1145).

47.       Another development is expressed in the ascension of the regulatory contract, which grounds the element of governmental direction upon an agreement between the regulator and the supervised entity. The framework of the regulatory contract represents a move from the “vertical” model to a “horizontal” model in which the state and the supervised entity negotiate the conditions that will apply between the parties, and the parties form a contractual, or quasi-contractual relationship, as expressed by my colleague President E. Hayut in para. 2 of her opinion in HCJ 4374/15 Movement for Quality Government v. Prime Minister [20], (hereinafter: the Gas Outline case):

This combination of regulatory provisions and obligations of commercial corporations in the area addressed by those provisions bears clear characteristics of a “regulatory contract”, which is a relatively new legal phenomenon, first found in the United States in the nineteen-nineties, as a tool that bases regulatory provisions in various fields on contractual relations. One of the salient characteristics of the regulatory contract, as opposed to other governmental contracts, is the identity of the parties to the contract. “A regulatory contract is made between an administrative agency, in its role as regulator, and a private corporation. [..] The legal framework of the regulatory contract is largely the result of the challenges faced by the authorities in the modern age due to the complexity of the regulation required in various fields, including, and perhaps primarily, in developed, free markets that intensify the need for supervisory regulation. Against this background, new models of administrative regulation have developed, among them regulation based upon cooperation with private entities that is grounded in contracts. One of the advantages inherent to such a regulatory model is the achieving of voluntary cooperation by the supervised entities which, on their part, may derive benefit from activity that is coordinated with the supervising body, as opposed to coercive provisions that are drafted and established unilaterally by it. However, the regulatory contract model raises many questions from both the legal and public aspects that may have consequences, inter alia, on the scope of judicial review applicable to such a regulatory model… (and see: Yadin, p. 38; emphasis added – H.M.).

 

48.       The case before us is characterized by relationships between the state and private entities (primarily multi-national corporate giants) that do not match any of the distinct cases listed above and do not fall within the scope of those regulatory schemes. It is therefore clear that the agency’s referrals to the online platform operators do not reflect a “command and control” relationship. The online platform operators are not subject to rigid regulation, and the Terms of Use and their “community rules” are, it would appear, independently established by those operators.

            The legal literature recognizes a regulatory phenomenon known as “voluntary regulation”, in which the market actor establishes its own manner of operation (see: Yair Amichai-Hamburger & Oren Perez, Environmental Self-Management: Effectiveness, Organizational Change, and Lessons for the Environmental Regulation System, 25 Bar Ilan Law Rev. 633 (2009) (Hebrew); and see Vismonski, who categorizes the relationship between the state and the operators as “contractual”, Vismonski, Alternative Enforcement, pp. 716-717). Nevertheless, in my opinion, what we have here is not a “voluntary regulation” model in the full sense. Although the online platform operators act independently in defining the rules that govern the relationship between them and the users, when the Respondents draw their attention to breaches of local law, their Terms of Use and “community rules”, it would seem that in the specific area of activity that concerns us (social networks and the area of network content), we cannot yet rule out the possible influence of such a referral on the online platform operators and their fear of the authority, which can act to limit their actions, whether by primary legislation or by administrative means (see and compare: Hannah Bloch-Wehba, Global Platform Governance: Private Power in the Shadow of the Global State, 72 SMU L. Rev. 27, 79 (2019) (hereinafter: Bloch-Wehba); Ken-Dror Fedman & Elkin-Koren, pp. 31-32; Balkin, Triangle, p. 2020).

49.       As we see, the case before us represents a new model in which law enforcement and regulation of the relationship among the various market players – the state, the social network participants (the authors of the various publications and the web surfers), and the online platform operators themselves – are carried out with the state acting as a reporter that refers the apparent breach for the examination and decision of the online platform operators. This framework, which might be called “inverse regulation” – inasmuch as the final decision rests in the hands of the online platform operators – neither increases nor lessens the problems that frequently arise in other regulatory models (such as violating personal freedom and the autonomy of the individuals subject to “command and control” regulation, and the problem of restricting the discretion of the authority in the framework of a regulatory contract). However, the “inverse regulation” model raises a fundamental question that derives from the aforementioned question of authority – given that we are concerned with non-obligatory, “voluntary” referrals by the government, can it be said that we are concerned with regulation? In other words, is the Cyber Department actually acting under a “soft” regulatory model when it initiates referrals to the online platform operators, and should such referrals be deemed governmental actions that justify the conferral of express legislative authority, or not?

            The theoretical position as to the nature of the “regulation” (to the extent that it exists under the circumstances) can be of consequence for the legal analysis of the legality of the administration’s actions.

50.       As described above, in situations that do not concern a “disguised governmental act” that is actually coercive, which must be voided for a lack of legal authority, it is entirely possible that a completely voluntary act whose result entirely depends upon the independent exercise of discretion by the body referred to does not require specific, express authorization by law, and thus, for example, the residual authority granted to the government under sec. 32 of Basic Law: The Government would therefore be sufficient. For example, under this approach the Cyber Department’s referrals to the online platform operators are not essentially different from requests sent by Israeli security and diplomatic actors to their foreign counterparts asking, for example, that they thwart plans by hostile foreign actors seeking to harm the State of Israel abroad or at home (on the subject of acting by virtue of the general authority granted under sec. 32 of Basic Law: The Government, or sec. 17 of the Interpretation Law, see Shimon Shetreet, The Government: The Executive Branch – Commentary on Section 18 of Basic Law: The Government, (2018) (Hebrew) (hereinafter: Shetreet).

            As opposed to this, where we are concerned with a regulatory act that can interfere with the freedom of action of players in the marketplace or restrict it, it may be assumed that, in this regard, the state must act in accordance with the principles of administrative law (see: Neta Ziv, Regulation, p. 1139).

51.       To my understanding, as long as it has not been proven otherwise (and as noted, this petition lacks respondents essential to examining the issues in dispute), the framework in which the Cyber Department operates does have a some potential for influencing and directing the actions of players in the marketplace and for creating an “inverse regulation” environment. This is so because, in my view, as opposed to the way that the Government Respondents seek to present themselves, a referral by a private individual to those online platform operators cannot be compared to a referral by a governmental agency that appears before the online platform operators as a “repeating player” who may also act against them in other ways. My position is, therefore, that the very possibility that the “sword of coercive regulation”, which the government, or someone on its behalf can draw against the online platforms if their operators frequently fail to accede to the referrals is sufficient to show that we are concerned with a governmental act that requires some legislative authorization. Indeed, there is the possibility that the state will seek to establish rigid normative rules to require the online platform operators to comply with the Respondent’s referrals or be exposed to various steps and sanctions, and that constitutes a lever for applying pressure that raises the fear that – at least potentially – we are not concerned with cooperation between the state and the private commercial entities that is completely voluntary (for examples of attempts at regulation to restrict publications on online platforms, see: Defamation (Prohibition) (Amendment – Disclosing the Name of a Tortfeasor) Bill, 5770-2010; Defamation (Prohibition) (Amendment – Prohibiting Defamation on the Internet) Bill, 5775-2015; Defamation (Prohibition) (Amendment – Correcting Defamation on the Internet) Bill, 5781-2020). As opposed to this, see the Copyright (Amendment No. 5) Law, 5779-2019 (which was enacted pursuant to comments by the Court in CA 9183/09 Football Association Premier League Ltd. v. Anon. [21] (hereinafter: the Premier League case)).

            In this regard, I will quote Dalit Ken-Dror Feldman & Niva Elkin-Koren:

The platforms that are commercial companies exposed to the exercise of governmental power are subject to a threat that if they do not cooperate with the alternative enforcement arrangement, they may be required to perform enforcement actions due to changes in the law, which would leave them less flexibility and discretion (Ken-Dror Feldman & Elkin-Koren, p. 38).

In this regard, also see the statement of the Commission for Establishing Means for protecting the Public and Officeholders in the Civil Service against Harmful Activity and Publications as well as Bullying on the Internet – Report (2020) (hereinafter: the Arbel Commission Report), which established as follows:

It should be borne in mind that the expression “voluntary” regulation, which is sometimes employed to describe referrals by the authority to request the removal of content, is not entirely appropriate to the situation it purports to describe. Indeed, the various platforms reserve the right to refuse the state’s request to remove content, however, there is no doubt that a state request bears significant weight, much greater than that of a referral by a citizen. This being so, use of this tool should be reserved for exceptional cases. The threshold requirement of the existence of a criminal offense appears to be an appropriate balance point [emphasis added – H.M.].

            Also see the statement by the head of the Cyber Department, Dr. Haim Vismonski, who is of the opinion that:

The distinction between voluntarily agreed defensive actions and actions pursuant to a coercive provision is not a dichotomy […] The service providers, on their part, fear legislative changes that would broaden the state’s authority to impose coercive provisions upon them that would intervene in the manner they regulate the content that they publish. The said fear encourages the providers to increase their agreed, voluntary cooperation with the states […] This somewhat undermines the voluntary basis, and it is possible to present the move as a coercive one by the state, even if somewhat covert (Vismonski, Alternative Enforcement, pp. 722-723).

52.       This is the place to explain that, in the framework of this petition, since the online platform operators were not named as respondents, this possibility is but a theoretical fear that we cannot properly examine. It is indeed possible that in examining referrals regarding breaches of the “community rules” and the Terms of Use, those powerful multinational corporations that operate the said platforms act without fear of the individual who may be harmed or of the administrative agency (for a view of online platform operators as acting independently in regard to governmental referrals, see: Alan Z. Rozenshtein, Surveillance Intermediaries, 70 Stan L. Rev. 99, 154 (2018).

53.       The conclusion to be drawn from the above is that although not even preliminary evidence was presented to show any defect in the discretion exercised by the Cyber Department, the fact that it transfers – if only temporarily – the decision in the matter to the online platform operators, which are civil bodies that seek to maintain good relations with the authority, raises the fear that, in practice, the Department’s referrals influence the discretion of those operators. Therefore, in my opinion, the Cyber Departments actions are of a governmental nature that requires authority, even if of a general sort.

            If we add to all the above the apparently uncontested fact that restricting or removing publications by the online platform operators may ultimately lead to limiting the fundamental rights of the publisher (insofar as a human entity is concerned), primary among them the right to freedom of expression, it is clear that the Department’s activities, even in the framework of “inverse” regulation, can influence, even if indirectly, the restriction of those protected fundamental rights.

54.       In conclusion, in their preliminary response, the Respondents discussed at length the view that it should be recognized that: “The activity of the Cyber Department in the voluntary track of referring reports of prima facie offenses that breach the Terms of Use established by the companies themselves does not involve the exercise of governmental authority” [emphasis added – H.M.]. It would seem that the Respondents’ intention was to say that if, indeed, the exercise of governmental authority is not concerned, then there is no need for specific legislative authority and the publication of the rules under which the agency operates.

            As stated, I hold a different view, and I therefore expanded upon identifying the Department’s conduct in the voluntary enforcement track as an exercise of some power in the regulatory field.

            There is an additional reason for this. The current scholarship on regulatory theory sees “the change in the power paradigm”, which we pointed out, as one of the primary adjustments to which administrative law must adapt in the modern age. If we take the case before us as an example, the rise of online platforms that provide convenient, available and effective infrastructure for disseminating messages and content of every type, creates a change in the balance of power, in which a limited number of private, multinational actors hold tremendous power to administer the “marketplace” in all that regards the exchange of opinions and messages, while any person with a keyboard (or touchscreen) can disseminate harmful, inciting and violent messages, as well as terror, while using a fabricated or fictional identity, and thus create a “market failure” and significant problems of enforcement (see and compare: Terry Flew, Fiona Martin & Nicolas Suzor, Internet Regulation as Media Policy: Rethinking the Question of Digital Communication Platform Governance 10 J. Digital Media Pol. 33 (2019); Bloch-Wehba, pp. 71-78).

55.       In view of the rise of various factors operating in the markets in previously non-existent forms and methods, Dr. Yuval Roitman is of the opinion that it would be appropriate “to distinguish between circumstances in which there is a need for restraining governmental power that is abused, and circumstances in which judicial review should encourage the exercise of governmental power, inasmuch as it is the state’s omission that is the flaw,” Yuval Roitman, Administrative Law in the Regulatory State, Mishpat Umimshal 219, 234 (2017) (Hebrew) (hereinafter: Roitman) [emphasis added – H.M.].

            In this regard, attention must also be paid to the consequences of the actions of entities operating in the marketplace (in our case, the online platform operators) as they relate to the general public. Prof. Neta Ziv gives the example of the view of Justice I. Zamir in HCJ 7721/96 Israeli Insurance Adjusters Association v. Supervisor of Insurance [22], who was of the opinion that in view of the excess power of insurance companies at the time, a “supra-arrangement” should be established to better protect the insured public. Therefore, in addition to the fact that we are faced with a special case of “inverse” regulation in which the regulatory authority (apparently) subjugates itself to the decisions of the market players, there is no doubt that there is a need for an agreed arrangement in regard to the behavior of the main players and the users of the social networks, and therefore, the activity of the Department on the voluntary enforcement track fulfils its obligation to act for the prevention of criminal offenses in a speedy and effective manner.

56.       What has been said so far shows, however, that the principle of administrative legality also requires that there be formal authorization in the case before us to facilitate the activity of the Cyber Department. As we see, its activity in the voluntary enforcement track may constitute a form of administrative act of operative effect. Therefore, in accordance with the fundamental principles of administrative law, in order to establish that the activities of the Cyber Department are lawful, authority, even if only general, must be found in the law.

            I will address this immediately, below.

 

The activity of the Cyber Department by virtue of the government’s residual authority

57.       The courts are not infrequently called upon to respond to situations in which it is claimed that an administrative authority is not performing its duty in accordance with the law. The touchstone established in the case law concerns the complete “shirking” of this duty by the authority, or its unreasonable refraining to carry out its duty (see: HCJ 6579/99 Filber v. State of Israel [23]; Roitman, pp. 265-266). This is another exceptional aspect of the present petition. In the matter before us, we are asked to address arguments of alleged “over-enforcement” by the Respondents. If the general position of the Court is that it is not its role to “take the place of the authorized agency and establish a law-enforcement plan for it” (HCJ 551/99 Shekem. v. Director of Customs [24]), then in the present petition, we are asked to examine whether the activity framework of the Department conforms to the authorities it has been granted.

            Before entering main hall, we should present some additional background data while still in the corridor, as I shall now do below.

58.       The internet, for all its advantages and disadvantages, as noted above, created a space in which access to the net and the activity there is, as my colleague Justice Sohlberg stated in the Israel Internet Association case:

… all over the world, but its existence is “nowhere” (para. 22 of his opinion).

            Moreover, in this situation, again quoting my colleague:

Offenders against the law adapt to progress more rapidly than its enforcers […] The former have no restraints; the latter do.

            In this situation, criminal and civil law do not, at present, provide a sufficient response to the offenses and torts perpetrated by means of the internet, and there are, therefore, those who are of the opinion that in view of the virtual nature of the said space, the laws of space, time and state should not be applied to the internet (see: Yuval Karniel and Haim Vismonski, Freedom of Expression, Pornography, and Community in the Internet, 23 (1) Bar Ilan Studies in Law 259 (2006) (Hebrew); Michal Agmon-Gonen, The Internet as a City of Refuge?! Legal Regulation in Light of the Possibilities of the Technological Bypass Technologies and Globalism of the Net, Legal Network: Law and Information Technology, Michael Birnhack and Niva Elkin-Koren, eds., 207 (2011) (Hebrew); and see: Vismonski, Alternative Enforcement, pp. 692-704).

            Some solutions for these problems have recently been offered in the literature by means of using cloud technology (see: Yochai Benkler, Degrees of Freedom, Dimensions of Power, 145 Daedalus 18 (2016)), and in our case law.

            In a judgment handed down three years ago by my colleague President E. Hayut (Justice A. Baron concurring) and myself in LCA 5860/16 Facebook Inc. v. Ben Hamu [25] (hereinafter: the Facebook case), the Court held that Facebook’s community rules constituted an adhesion contract between Facebook and the network users, which opened many possibilities for enforcement (and see and compare: LCA 1239/19 Shaul v. Nayadli Communications [26]).

            However, the advancement of case law, which by its very nature is “bottom up” (from the trial court to the Supreme Court), cannot suffice to stop the “bad actors” operating on the net.

            In addition, the decentralized nature of the production and virtual distribution on the internet makes it very difficult to carry out enforcement by the traditional means of bringing the offender to trial, not to mention that anonymity on the internet makes it difficult to identify offenders and tortfeasors (see, e.g., the Mor case). Another challenge for enforcement is the global nature of the network. Thus, for example, various legal issues arise concerning the application of local law to alleged offenders where it is unclear whether they are citizens or residents, or operate within the territory of the state. Moreover, due to the global character of the internet, it is possible that expression that is deemed potentially criminal in one legal system does not constitute prohibited speech in another (see: Ken-Dror Fedman & Elkin-Koren, p. 35). In addition, in the United States, for example, certain online platform operators enjoy immunity (see: Madeline Byrd and Katherine J. Strandburg, CDA 230 for a Smart Internet, 88 Fordham L. Rev. 405 (2019)), which may apply extraterritorially.

            Thus, the voluntary enforcement mechanism was created to provide answers to most of these problems.

            What, then, is the source of authority for the Cyber Department’s activity in the framework of this enforcement mechanism?

59.       The primary source of authority is to be found in the residual authority granted to the government pursuant to sec. 32 of Basic Law: The Government.

            As intimated above, the scope of authority granted to the government is far wider than the individual authorities that the legislature granted expressly, such that by its nature, the government is daily involved in “all embracing” activities that lack any express, specific foothold in the law (see: Zamir, p. 419). This range of activities is conducted, as noted, by virtue of the doctrine of residual power entrenched in sec. 32 of Basic Law: The Government. The direct meaning of this provision is that, in the absence of another provision granting authority to some other agency, the government is authorized to act in the name of the state.

            The substance of the doctrine of governmental residual power derives from the tremendous scope of administrative activity, the surprising nature of developments in daily life, as well as the recognition of the fact that legislation cannot keep up with the pace of technological advances (see: Daphne Barak-Erez, Administrative Law, vol. 1, 139 (2010) (hereinafter: Barak-Erez); Shetreet, pp. 561-562). I addressed this in the Premier League case, where I stated as follows:

It is well known that technology generally precedes the law. In such cases, the legislature and the courts are called upon to pour the essence of the existing, good and grounded principles into new legal vessels (as though they were aged wine that improves with time and only needs a more modern container. Compare: Stephen Breyer, Active Liberty 64 (2009).

            My colleague Justice N. Sohlberg added to this in the Israel Internet Association case in stating:

As we know, the law slowly staggers behind the world’s innovations, and legislation cannot keep up with the pace of scientific progress and its applications.

60.       The force and incidence of the residual power have been addressed in a number of judgments by this Court. Thus, for example, in the Gas Outline case, the Court held that:

The term “residual power” is not a magic word and is not a key to every gate. It is examined after examining the direct powers and should not be ambiguous (para. 142 of the opinion of Justice E. Rubinstein).

            In that case, there was a disagreement among the members of the panel, inter alia, on the question whether establishing an outline for treating an essential natural resource found in large quantities on the state’s coast exceeds the government’s residual power and requires that the outline be established in specific primary legislation, inter alia, because it constitutes a primary arrangement. The majority held that the arrangement did not require express primary legislation (see: the Gas Outline case, para. 11 of the opinion of my colleague Justice E. Hayut; paras. 10-14 of the opinion of Justice U. Vogelman; paras. 50-62 of the opinion of Justice N. Sohlberg. On the dissenting opinion, which was of the view that the outline required particular primary legislation, see: paras. 127-143 of the opinion of Justice E. Rubinstein; and paras. 3-13 of the opinion of Justice S. Joubran. And see: HCJ 11163/03 Supreme Monitoring Committee v. Prime Minister [27], para. 10 of the opinion of Deputy President M. Cheshin).

            It has further been held that the government cannot act by virtue of its residual power in order to violate entrenched or implied basic rights granted to individuals by Basic Laws. Thus, for example, in HCJ 5100/94 Public Committee against Torture v. State of Israel [28], which treated of the authority of the General Security Service[2] to conduct interrogations in general, and particularly the use of special interrogation methods that included employing physical means, President Barak held: “The ‘residual’ power of the government is not a source of authority that infringes the liberty of the individual. The residual powers of the government authorize it to act whenever there is an ‘administrative vacuum’ […] There is no such ‘administrative vacuum’ in this case, as it is ‘filled’ by the principle of individual freedom. Infringing this principle requires a specific provision”.

            However, it is important to note that until the enactment of the General Security Service Law, 5762-2002, it appeared that the general authority of the General Security Service to act in its sphere of activity derived from the residual power doctrine (see: Report of the Commission of Inquiry into the Methods of Investigation of the General Security Service regarding Hostile Terrorist Activity, p. 41 (1987)), and the authorities of the Institute for Intelligence and Special Operations [the “Mossad” – ed.] rely upon that source of authority to this day).

61.       Specifically, in the matter of infringing freedom of expression, it was previously held in the Federman case that this vested right cannot be infringed by virtue of the general authority under the residual principle:

There are actions that are not within the scope and power of the government because exercising them without legal authority is contrary to fundamental normative concepts that derive from the nature of our regime. So it is in regard to basic rights that are part of our positive law, whether it has or has not yet been included in a Basic Law. Thus, for example, the government does not have the authority to close a newspaper on the basis of an administrative order if there is no express legal provision that addresses such a matter, and even were there not a Basic Law that defines freedom of speech. Such an act would be contrary to our fundamental concepts regarding human liberty inherent to our regime, which can only be limited by statute […] therefore, the basic right to freedom of speech, which is part of our positive law, creates a restriction that ties the executive’s hands and does not permit it to deviate, without legal authority, from the prohibition upon infringing a freedom it grants. (ibid., p. 652; emphasis added – H.M.; and see Zamir, pp. 421-423).

            Indeed, these restrictions upon the residual power of the government were intended to ensure that the broad general authority granted under this provision of Basic Law: The Government will not completely erode the principle of administrative legality, and does not replace the constitutional values grounding the system (see: Barak-Erez, pp. 139-143).

62.       The answer that should be given to this question is negative in the circumstances. At present, and in accordance with the evidentiary foundation presented in the petition, there are no grounds for finding that the Cyber Department’s activity is unconstitutional. In my opinion, while we cannot deny the possibility that the Cyber Department’s activity has operative force, in that it initiates a process that may result in a real act of removing publications or preventing access, I do not believe that there is a violation of basic rights, in the usual sense,  in most of the areas in which the department acts (as for the exceptional cases, see my comments in para 73(b), below).

            I will now explain in detail.

63.       What is an infringement of a constitutional right? A review of the case law of this Court reveals that the question of the infringement of the constitutional right has not raised any real problems to date. For example, in LCA 3145/99 Bank Leumi v. Hazzan [29], 398, it was held that infringement concerns the absence of ability to realize the full scope of the constitutional right (and see: Aharon Barak, The Constitutional Right and its Violation: The Three-Step Theory, 19 Mishpat Umimshal 119 (2018) (Hebrew) (hereinafter: Barak, The Constitutional Right)). According to Prof. Barak, examining an infringement of a constitutional right is almost independent of the circumstances, stating:

An infringement occurs in every situation in which the authority forbids the holder of a right to realize it fully or prevents him from doing so. An infringement is any detraction from full realization of the right. There is no significance to the question whether the infringement was the result of fault (intention, recklessness, willful blindness, negligence) or without fault, whether it was serious or minor, at the heart of the right or its periphery, by an omission or by an act, or whether it was certain or that there was but a possibility – that is not de minimis – for its realization. Every infringement, regardless of its scope, moves the constitutional review from the first step to the second, unless the infringement is de minimis. (Barak, The Constitutional Right, p. 148).

64.       However, some resonances of a view that disagrees with the broad scope of the concept of infringement of right, as defined above, can be found in the case law. Thus, for example, in CA 6821/93 United Mizrahi Bank v. Migdal Cooperative Village [30], President Shamgar noted in regard to the right to property: “Violation of the right to property, for our purpose, was illustrated by reference to constitutional acts possessing substantive personal repercussions, for example, those by virtue of which the property of a person is confiscated without proper compensation, in an arbitrary or other substantive breach of his rights.” (ibid., p. 332 [para. 38]; and see the opinion of Justice A. Procaccia in HCJ 10203/03 Hamifkad Haleumi v. Attorney General [31], 852-854; and see the opinion of President A. Grunis in HCJ 2442/11 Shtanger v. Speaker of the Knesset [32]).

            Another possible criticism if the broad view proposed by Prof. Aharon Barak was mentioned by Prof. Barak Medina. In accordance with the deontological-necessity approach presented in his book, an infringement of a constitutional right does not refer to the consequences of the act, alone (that is, the restriction of the full realization of the right), but also concerns evaluating the nature of the act and the reasons for diminishing the protected interest. In the context of the matter before us, Prof. Medina explains that in order for an act by a governmental agency to rise to the level of an infringement of a vested right, the infringement must be “a violation by virtue of an intentional act, whose consequences are certain, and under the circumstances of the matter, comprise some breach of a moral constraint concerning the proper relationship between the government and the individual” (Barak Medina, Human Rights Law in Israel, 88 (2016) (emphasis added – H.M.).

65.       Of course, the above debate might be relevant to the sufficiency of the government’s residual power as a source of authority for the activity of the Cyber Department, however, we have no need to decide among the various approaches for a number of reasons:

A)        In the present case, it would appear that there is no disagreement that, as earlier noted in para. 21, robots and avatars do not enjoy human rights, and therefore infringement of their right to freedom of expression is not relevant, and some of the harmful publications derive from such bots and avatars. Nevertheless, in my opinion, where there is doubt as to whether the act is likely to lead to a real violation of fundamental rights, extreme caution must be exercised, as stated in para 73(b), below.

            The situation of enforcement in regard to social networks is unique and differs in its very nature from the constitutional or classic administrative paradigms in which the individual stands in opposition to the government (see and compare: Michael D. Birnhack & Niva Elkin-Koren, The Invisible Handshake: The Reemergence of the State in the Digital Environment, 8 Va. J.L. & Tech, 48-54 (2003)). As Prof. Balkin describes it, on questions of freedom of expression and other issues in the scientific age, there is a triangular relationship: The state is at one vertex, the private internet companies and various platforms are at another vertex, while the speaking individual (or organization) is at the third (see: Balkin, p. 2014). In my opinion, in such a unique power triangle, where the state does not demand or impose removing or restricting expression, and the online platform operator is the one who removes the publication at its discretion, it cannot be said that it is the state that infringes the right, and in any case, those harmed have other remedies, including against the online platform operators.

B)        In the present case, the state’s involvement in protecting or restricting political expression is slight, as it plays no role in providing the infrastructure for political expression (which is provided, as noted, by the online platform operators).

66.       As for the lack of authorization – the Petitioners brought the example of the Israel Internet Association case, which held, as noted, that a police officer lacks authority to order the closure of a “gambling site” operating on the internet, inter alia, in view of the possibility that it might lead to a violation of the right to occupation and freedom of expression of the website operator and its users. However, in my opinion, the said case is entirely different from the one before us for several reasons:

            First, because that matter concerned a closure actively imposed by an administrative organ where it, and it alone, had discretion as to how to act, and to order the provider of access to the gambling site not to permit access to that site. In the case before us, there is no disagreement that the authority to exercise discretion is given to the civil organ to whom the matter is referred – the online platform operators (on the possibility that this is a prohibited delegation of authority, compare: the Israel Internet Association case, para. 15 of the opinion of Justice U. Vogelman).

            Second, and pursuant to our discussion of the infringement of freedom of expression as a fundamental constitutional right, even in the Israel Internet Association, Justice Vogelman held: “With respect to gambling websites, and only to them, my opinion, as mentioned above, is that the infringement of free expression that resulted from blocking lawful content on the gambling websites, is of a limited degree, if at all” (ibid., para. 10).

            Parenthetically, I would note that even the Mor case (which held that authority to issue an order for revealing the identity of an anonymous internet user should not be established by “judicial legislation”) cannot be of aid to the Petitioners as a source for establishing that the absence of legislative authorization for the restricting activity nullifies the conduct. That affair addressed the limits of interpretation, and in particular, the limits of “judicial legislation”, exercised by the court, and not the authority of the executive branch.

67.       Similarly, we should distinguish the other cases referenced by the Petitioners, as follows:

A)        The Kahane case concerned prior restraint, whereas in the case before us, the alleged offenses have already been committed, and the purpose is to frustrate their continued perpetration and their harm (on this distinction, see: Avigdor Klagsbald, Criminal Offense and Prior Restraint, 2 Plilim 93 (1991) (Hebrew)).

B)        The Manaa case concerned activities that restricted freedom of movement (placing roadblocks) by the police. Here, the infringement, to the extent that there is one, is performed by the internet platform operators and not by a governmental organ, not to mention that the potential victims are deemed to have agreed to the “community rules” (assuming that they are a type of adhesion contract, as held in the Facebook case).

C)        The Hof Azza Regional Council case interpreted sec. 32 of Basic Law: The Government, and approved the payment of advances to those seeking to evacuate the Gaza Strip and Northern Samaria voluntarily, as it concerned an executive authority for which there is no legislative arrangement and the government’s residual authority therefore applied. This is also the case in the matter before us in regard to the Department’s voluntary referrals to the internet platform operators (and compare: HCJFH 9411/00 Arco Electric Industries Ltd. v. Mayor of Rishon LeZion [33], 64-65). Even the Prevention of Crimes Law is not a negative arrangement in this regard, as it does not in any way address the subject of voluntary referrals.

68.       Moreover, in those cases in which residual power cannot be of help, the auxiliary authority under sec. 17(b) of the Interpretation Law comes into play. In such cases, and in the circumstances appropriate to the case before us, primary authority for performing voluntary enforcement derives from the general enforcement authority of the Attorney General by virtue of the criminal procedure laws, the Penal Law, and sec. 13 of the Interpretation Law (as argued by the Respondents), or by virtue of the general authority of the Minister of Justice under the Prevention of Crimes Law, including sec 16 therein (and compare: MApp 1190/18  Ethics Committee v. David Yedid, Adv. [34]).

            There are also no grounds for the claim that the executive is trespassing, so to speak, the boundaries of the judiciary in finding that a prima facie offense has been committed by the publisher. The State Attorney’s Office holds such authority and exercises it as a matter of course, as for example, in filing an information when there is a reasonable expectation of a conviction. Moreover – ever since the judgment in HCJ 442/71 Lansky v. Minister of the Interior [35], the accepted view is that a “criminal past” can be established on the basis of the administrative evidence test, even in the absence of a conviction (for a comprehensive survey of the subject, see: Ron Shapira, From Criminal to Administrative Enforcement: Administrative Evidence of the Commission of a Criminal Offense – the Need for a Fair Administrative Process (2019) (Hebrew)), and indeed, at times it is not possible to find the offender or bring him to justice, and yet it would appear that a crime has been committed, consequences can be attributed to it, and it is certainly possible to attempt to prevent the harm or its continuation.

            This is the appropriate place to add that in most of the above cases, the granting of a right to be heard prior to taking administrative action is irrelevant, as the victim (whether because anonymous or unreachable) is not available (see and compare: CA 5739/18 Operators of the Website www.oligarchescorts.com v. State of Israel [36]; Barak-Erez, p. 499).

69.       And now to return to the matter before us.    

            In my opinion, as long as it has not been proven that it is the activities of the Cyber Department that directly and certainly lead to a violation of fundamental rights, and as long as no evidentiary foundation has been laid showing that the discretion of the online platform operators is not actually independent, a voluntary referral from the Department to the online platform operators is not prohibited. In these cases, it is difficult to view the authority’s actions as a form of intentional infringement of fundamental rights in a manner that would negate the authority of the Cyber Department to act to frustrate publications that amount to a prima facie criminal offense.

            This is the place to reiterate that a very high percentage of the publications whose removal or restriction was requested by the Cyber Department concerned offenses of violence and terrorism, and it was not argued that those who committed the offenses are subject to Israeli law. The offenses that the Cyber Department seeks to frustrate by restricting publications that incite violence or terrorist acts are therefore at the heart of the residual powers granted to the government in the areas of security and foreign relations (see: Shetreet, pp. 567-597; Cohn, p. 164).

            In all that concerns offenses of incitement to violence or terrorist acts, this conclusion derives a fortiori from the conclusions of the Arbel Commission Report, in which the majority recommended expanding the voluntary enforcement mechanism even beyond its present state, so that voluntary referrals by the government would be permitted even when a criminal offense is not concerned. As opposed to this, the minority was of the view that the provisions of the Work Procedure are appropriate to the desirable situation. We are treating of the Work Procedure as it is, and we were not asked for any expansion. That is sufficient in the present matter.

70.       Moreover, although the “principle of legality” in administrative law takes on different forms from state to state (and certainly between a state and a supra-national body), the citations and examples appended to the Respondents’ supplementary brief show that at least in a number of western democracies, the authority to initiate the “voluntary” removal of harmful publications is not conferred upon the administrative agencies by virtue of express authorization to act in the said manner.

71.       In addition, I cannot accept the argument that residual power is displaced in the matter before us due to the express legislative provision treating of the authority to investigate and bring charges as detailed above, or by virtue of sec. 17(b) of the Interpretation Law. As noted above, enforcement of the type before us is entirely different from the criminal process – its purpose is not penal, but rather it attempts to prevent publication of material whose affect is immediate and requires speedy action for its removal in order to minimize ongoing harm (respectively): to public safety, public order, protection of the vulnerable, or the proper, fair conduct of elections.

 

A View to the Future

72.       To summarize what has been stated thus far – in my opinion, the Respondents stand, although at times just barely, within the bounds of the law. It cannot be denied that the Cyber Department’s activity, as presented in the preliminary response to the petition, is vital to the protection of national security and social order. The voluntary method by which the Cyber Department acts in this regard is not, however, problem free, primarily in regard to the absence of specific authority for its activity in primary legislation. However, until the enactment of detailed legislation on the matter (as has been done in some countries), the current situation can continue by virtue of residual power or auxiliary authority.

73.       Beyond that, a number of overall problems have been uncovered that the Respondents should consider and correct, as set out below:

A)        The Cyber Department should consider what was stated in the Movement’s request to join, which described a series of defects in the Department’s work, among them: a lack of documentation of the content of the publications that the Cyber Department seeks to remove, inadequate details in the transparency reports produced by the Department, and the non-publication of the Work Procedure (for example: the type of criminal offense grounding the voluntary act; a more detailed account of the alleged offenses related to the publication; the identity of the publisher and its relationship to the State of Israel, to the extent known to the Department). In addition, there is a problem in clarifying the role of the online platform operators (which might have been clarified had those operators been joined as respondents to the petition), and the agreements between them and the Department.

            In view of the fact that most of the Cyber Department’s activity concerns security offenses, exposing the full extent of the Department’s activity certainly presents a problem. However, I believe that the Cyber Department should present paraphrases and examples of the character of the referrals it sends and its discussions with the online platform operators in its transparency reports.

B)        In making its referrals to the online platform operators, the Department should guide itself in accordance with the case law of this Court, which constitutes law that supersedes residual authority in this regard, including the judgments given in CrimFH 7383/08 Ungerfeld v. State of Israel [37]; LCrimA 5991/13 Segal v. State of Israel [38]; LCrimA 7052/18 State of Israel v. Rotem [39] (further hearing pending)).

C)        A legislative initiative should be weighed to provide a detailed arrangement for the voluntary enforcement mechanism, as has been done in some other countries.

74.       Another argument, which was not addressed in the framework of this petition, is the need for establishing a post facto oversight and supervision mechanism for the Department’s activities, and it is recommended that this be considered (on the need for regulating the sphere of activity of actors on the internet in terms of procedure and proper constitutional balances, see my opinion in the Premier League case).

            The above problems are not insignificant, but they do not, in themselves, justify issuing an order nisi in this petition in its present state. Nevertheless, the Respondents must draw conclusions for ameliorating the system in regard to all the aspects set out above.

 

Conclusion

75.       In view of all the above, if my opinion be accepted, we will order the dismissal of the petition in all its parts, subject to my comments in paras. 73 and 74, without an order for costs.

 

Justice A. Stein:

I concur.

 

President E. Hayut:

1.         In his comprehensive, in-depth opinion, my colleague Deputy President H. Melcer well described the uniqueness and complexity of the questions raised by this petition, among them the question of defining a governmental act; the question of the incidence of Basic Law: Human Dignity and Liberty beyond the borders of the state; the question of the rights of computer-generated fictitious users (“bots”), where it is unclear whether and to what to extent a human agent stands behind them; as well as questions related to the area of the regulatory relationship between the state and private bodies operating online. They are unprecedented to a large extent, and even according to the Respondents, the activity that is the focus of the petition “is of a character unlike the usual activity of the State Attorney’s Office” (see the letter of the Ministry of Justice of Jan. 10, 2019, Appendix R/9 of the Respondents’ response to the petition).

            I will, therefore, begin by saying that in my opinion, it is very difficult to examine these substantive questions of first impression given the partial picture presented to us. Therefore, if my opinion were accepted, the petition would be dismissed in limine.

2.         The activity that is the subject of the petition is that of the Cyber Department of the State Attorney’s Office (hereinafter: the Cyber Department or the Department) in the “voluntary” enforcement track. As my colleague the Deputy President explained, in accordance with a Work Procedure that it established, the Department initiates referrals to online platform operators (social networks, search engines, and website hosting providers) to report publications that, in the opinion of the State Attorney’s Office, constitute an offense under Israeli law and also breach the Terms of Use of the platform itself. According to the Department’s preliminary response, such referrals are sent to the online platform operators only when there are additional considerations that justify the referral, among them the severity of the publication, the scope of its distribution and its “viral” potential. In practice, the Department focuses primarily upon publications related to the operations of terrorist organizations and in the matter of inciting violence and terror. Referrals are also sent in regard to publications that may harm minors, certain public servants, or the integrity of Knesset elections.

            My colleague the Deputy President noted that the petition suffers from two defects that are sufficient for its dismissal in limine. They are the failure to join the online platform operators as respondents to the petition, and an insufficient factual foundation for the argument that the Cyber Department acts without authority. This, inter alia, in view of the uncertainty as to the questions of whether the publishers that are the subjects of the referrals are people or “bots”; whether they are located in the country or abroad; and whether the online platform operators decide to remove publications independently or are perhaps influenced by the fact that the referring body is the State Attorney’s Office. However, my colleague was of the opinion that in view of the fundamental constitutional questions raised by the petition, they should be addressed on the merits. In his opinion, the activity of the Cyber Department constitutes a governmental act, and where there is a possibility that the Department’s referrals may influence the decisions of the online platform operators whether to remove the publications, there is a need for some form of authorization for the Department’s activity. Therefore, my colleague addressed the question whether it is possible to discover a source that authorizes the Cyber Department to act in this manner, and concluded that it can be premised upon the residual power granted to the government under sec. 32 of Basic Law: The Government, as long as the Cyber Department’s activity does not infringe fundamental rights, inasmuch as residual power cannot serve as the basis for such infringement.

3.         On the basis of the foundation laid out before us in regard to the manner of the Cyber Department’s activity and its consequences for the online platform operators, and in view of the significant deficiencies in that foundation, my colleague is of the opinion that it cannot be said that the state is the entity that infringes a constitutional right. In this regard, he emphasizes the significant difficulty inherent in recognizing the possibility of the infringement of freedom of expression of a non-human entity (e.g., “bots” and “avatars”). He further emphasizes that the entity that holds the power to decide whether or not to remove the publication is the platform operator and not the state. Therefore, my colleague holds that “as long as it has not been proven that it is the activities of the Cyber Department that directly and certainly lead to a violation of fundamental rights, and as long as no evidentiary foundation has been laid showing that the discretion of the online platform operators is not actually independent, a voluntary referral from the Department to the online platform operators is not prohibited” (para. 69 of his opinion).

4.         I concur with the conclusion of my colleague the Deputy President that the activity of the Cyber Department that is the subject of the petition constitutes a governmental act. In this context, the words of Justice I. Zamir in regard to the definition of “administrative authority” are apt:

When an administrative agency exercises its authority, […] it fulfils a public function under law. That being so, it is subject to the special system of laws that is the system of administrative law […] It is possible that this is the simple and appropriate way to define administrative authority: Administrative authority is a public function in accordance with law (Izhak Zamir, Administrative Authority, vol. I, The Public Administration, 205 (2^nd expanded edition, 2010) (Hebrew) (emphasis added).

            In the matter before us, as my colleague the Deputy President noted in his opinion, the Cyber Department’s referral activity is systematic, focused, broad, and organized: Attorneys of the State Attorney’s Office send referrals to the online platforms in regard to publications that are prima facie criminal offences, regarding which there is a public interest in their removal, and that prima facie breach the Terms of Use of the platform. This is part of a declared plan of the State Attorney’s Office, and in in accordance with a dedicated procedure established for the purpose (see para. 15 of the Respondents’ supplementary brief). In these circumstances, it is clear that the Cyber Department’s activity constitutes a “public function”, and thus is a form of decision or exercise of authority on behalf of the state.

5.         The center of gravity of the petition, in its present form, is the question of infringement of a fundamental right. According to the Respondents, even if the Cyber Department’s activity constitutes a governmental act, and therefore requires a conferral of authority, it is possible to suffice in this regard with the government’s residual power (sec. 32 of Basic Law: The Government, which my colleague the Deputy President discussed at length), or the authority of the State Attorney’s Office as the representative of the Attorney General, who holds the auxiliary authorities required for the performance of his role (based upon secs. 3 and 17 of the Interpretation Law, 5741-1981). Auxiliary authority and residual power cannot form the basis of an infringement of a fundamental right (see HCJ 5128/94 Federman v. Minister of Police [16], 652; sec. 8 of Basic Law: Human Dignity and Liberty, according to which any violation of rights under that law requires express authorization by a law or by virtue thereof; and see Daphne Barak-Erez, Administrative Law, vol. 1, 146 (2010) (Hebrew); HCJ 4455/19 Tebeka Advocacy for Equality and Justice for Ethiopian Israelis v. Israel Police [40], paras. 14 and 34)). Deciding whether there is sufficient authorization for the activity of the Cyber Department is, therefore, largely contingent upon whether that activity infringes fundamental rights. According to the Respondents, the “informing” and recommending referrals by the Cyber Department to the online platform operators do not amount to a violation of rights. That is so because the platform operators exercise independent discretion in all that concerns the removal of the content that is the subject of the referrals, whereas the Cyber Department only makes recommendations.

            The petition before us suffers from two material defects that my colleague the Deputy President addressed, each of which – and a fortiori cumulatively – frustrate the possibility of deciding this fundamental question on the merits. Therefore, in my opinion, there is no recourse but to dismiss the petition in limine. These defects are, as noted, the failure to join relevant respondents, and a lack of a factual foundation. I will address these respectively.

6.         Failure to join relevant respondents – as has been held on more than one occasion, refraining from joining those who may be affected by the decision upon the petition constitutes a material defect that can justify dismissing the petition in limine. This, inter alia, because the respondents who were not joined can shed essential light on the issues to be addressed: “In order for the court to ground its decision upon a full, reliable picture of the situation, there is no one better to present the opposing view than one who is related to the matter and may be harmed by a court order” (HCJ 1901/94 MK Landau v. Jerusalem Municipality [41], 415 (hereinafter: the Landau case); and also see Izhak Zamir, Administrative Authority, vol. III, Judicial Review – Threshold Rules, 1747 (2014) (Hebrew)). This defect is particularly salient when the petitioner has been granted the opportunity to correct the omission and chose not to do so (HCJ 151/11 Ruth and Emanuel Rackman Center v. Minister of Justice [42], para. 17; and compare: HCJ 384/82 Pachmas Metal & Plastic v. Minister of Finance [43], 300-301)).

            In their preliminary response to the petition, the Respondents raised several arguments in regard to this threshold requirement, and the Petitioners’ attorney was even asked about this in the course of the hearing on Aug., 8, 2020, responding:

We considered whether to join, we considered before whom to petition. We are not arguing against Facebook or any other company. We are arguing that we have here a governmental act by the state that refers to the content providers in this entire sphere of removal of content without connection; the governmental act here is that of initiated referral by the Cyber Department – that is an act that requires authorization. […] We do not believe that there is harm [to the operators] (p. 4, lines 29-32 of the transcript).

7.         I am unable to accept this argument. The Cyber Department’s Work Procedure lists a “mixed multitude” of “online platforms”, and the differences outnumber what they share in common in no few aspects (see sec. 1 of the Procedure). The online social networks (Facebook, etc.) are unlike online search engines (like Google) or website “hosting” providers (like WordPress). And an online social network, in which mostly text and pictures are shared (like Facebook and Twitter) is unlike a social network for sharing only videos (like YouTube). These platform operators are differentiated by a number of criteria that have consequences for the questions at the heart of this petition, among them: the type of contents regarding which the Cyber Department sends notifications; the policy for treating those referrals; and the importance that each operator assigns to the identity of the party requesting the removal of content. The question whether and to what extent these operators are expected (all or some) to be harmed by the granting of the petition was also not sufficiently examined, and I am not convinced that the Petitioners succeeded in showing that those operators cannot be expected to be harmed at all by a decision on the merits in this petition. As my colleague the Deputy President noted, we have before us a “triangular relationship” or a “power triangle” with three vertices: the state, the publishers (in whose names the Petitioners argue), and the online platform operators. Without representation for one of the vertices of the triangle, it is impossible to decide material questions that affect the entire triangle.

            Indeed, at times the Court is willing to address a petition on the merits despite the defect of not joining relevant respondents, for example, “if the harm to the third party is negligible, if there are grounds for assuming that he is not interested in arguing before the Court, or if it is clear that one of the Respondents will fully and adequately present the arguments in regard to that party” (the Landau case, p. 415). Without expressing an opinion on the question of the scope of the harm that would be caused to the platform operators if the petition were granted, it is clear that there are no grounds for assuming that all of these operators are not interested in voicing their position on the matter at the heart of this petition, or for assuming that the parties to the petition can present the full picture in regard to those operators.

8.         Thus, we find that this petition suffers from a material defect of not joining respondents who may be harmed by the decision rendered, and the information they have may even materially affect the decision on the merits of the Petitioners’ arguments. This is particularly so in regard to the question whether the Cyber Department’s activity infringes constitutional rights, and the question of the scope of the alleged infringement. The Petitioners were confronted with the said defect at the preliminary stage and chose not to remedy it.

            Even if one were to argue that this defect can be remedied by alternative means, such as joining the respondents at the Court’s initiative, that would be to no avail as the petition, in its current state, suffers from an additional, no less material defect in regard to the insuffciency of the factual foundation necessary for deciding upon it.

9.         As my colleague the Deputy President emphasized in his opinion, we were not presented with data on the scope of the infringement of fundamental rights caused as a result of the operators’ acceding to the Cyber Departments referrals. In particular, it was not made clear what part of the referrals concern publications that originate beyond the borders of the state, anonymous publications, or publications that were not uploaded by human beings – in which case, as my colleague noted, material questions arise in regard to the applicability of Basic Law: Human Dignity and Liberty to those publications. In addition, although the Respondents presented data in regard to the total number of referrals issued by the Cyber Department over the last few years (see para. 17 of the opinion of my colleague the Deputy President) and asked to present ex parte “a number of concrete examples of the Cyber Department’s reports to the online platforms in various areas” (para. 26 of the preliminary response), it appears from the Movement for Freedom of Information’s request to join that the Cyber Department does not maintain a database of all the publications regarding which it sends referrals. The activity reports published by the Cyber Department present only laconic information about the publications regarding which referrals are sent, the identity of the publishers and the reasons for sending the referrals (see para, 73(a) of the opinion of my colleague the Deputy President).

10.       The absence of a factual foundation in regard to the activity of the Cyber Department does not fall upon the Petitioners but rather upon the Department itself, and the relevant data is in its possession or can be obtained by it. However, the Petitioners did not focus their arguments upon the transparency of the Cyber Department’s activity, did not request an operative remedy in this regard, did not exhaust the procedures with the Respondents in this regard, and it is not clear whether they submitted requests in this matter under the Freedom of Information Law, 5758-1998. In these circumstances, and given the factual gaps addressed in the opinion of my colleague the Deputy President, I do not believe that it is possible to continue to examine the petition on the merits in its current state.

11.       The primary question raised by the petition before us is, as stated, whether the referral activity of the Cyber Department – as expressed in the Work Procedure that it established – leads to a violation of fundamental rights. To the extent that the answer is in the negative, it is possible to suffice with the sources of authority cited by the Respondents, and hold that this activity does not constitute a deviation from authority, while to the extent that the answer is positive, the Respondents will be required to find some alternative source of authority, in the absence of which there will be no recourse but to hold that the Cyber Department acts ultra vires. A significant component of the Petitioners’ argument thus treats of the alleged infringement of freedom of expression. The Petitioners further argue that the Cyber Department’s activity also involves an infringement of the right to due process and the right to be heard, because it does not afford the publishers the right to be heard prior to sending the referral, which includes the Department’s position that the publication constitutes a prima facie criminal offense.

            My colleague the Deputy President is of the opinion that there is no violation of a constitutional right in this case, without seeing a need to decide the question of the criteria for the existence of an infringement of a constitutional right (paras. 63-65 of his opinion). To my mind, the accepted approach, long established in the case law of this Court, is that when there is an infringement of a constitutional right that is not de minimis, the constitutional review moves from the first step – that of the violation – to the second, i.e., examining the justification for the violation in the framework of the tests of the Limitation Clause. In any event, under the circumstances of the matter before us, the insufficient factual foundation in regard to the manner in which the Cyber Department operates, together with the insufficient factual foundation in regard to the conduct of the online platform operators, which largely derives from their not being joined to the petition (particularly the question of the importance they assign to the fact that the referrals are sent by the Cyber Department of the State Attorney’s Office of the State of Israel), all lead, in my opinion, to the conclusion that, at this point in time, it is not possible to decide the question whether the Cyber Department’s activity leads to an infringement of freedom of expression or of the right to be heard and the right to due process. In other words, in view of the partial picture of the necessary facts presented to us, and in view of the absence of the online platform operators as parties to the petition, it is not possible, in my opinion, to examine the material questions raised by the petition, and there is no alternative but to dismiss it in limine. I would also join the comments in para. 73 of the opinion of my colleague the Deputy President in regard to the difficulties presented by the activities of the Cyber Department, and his call for the publication of the details of the Work Procedure of the Cyber Department (para. 12 of his opinion). Therefore, were my opinion accepted, we would order the dismissal of the petition in limine, without an order for costs.

 

The petition is denied.

Given this day, the 30^th of Nissan 5781 (April 12, 2021).

 

 

 

CrimA 5338/17

 

 

Appellants:

Moshe Abutbul – Mayor of Beit Shemesh Beit Shemesh Municipality

v.

 

Respondents:	1.  Nili Phillip 2.  Eve Finkelstein 3.  Miriam Sussman 4.   Rachelli Shluss 5.  Miri Shalem 6.  The Israel Religious Action Center – Israel Movement for Reform and Progressive Judaism 7.  Attorney General

 

Appeal on the decision of the Jerusalem District Administrative Affairs Court (Judge Y. Merzel) of June 7, 2017 in AP 049319-05-15

 

 

Israeli Supreme Court cases cited:

[1]       LCA 6897/14 Radio Kol Barama Ltd. v. Kolech – Religious Women’s Forum (Dec. 9, 2015) [https://versa.cardozo.yu.edu/opinions/radio-kol-baramah-v-kolech-%E2%80%...

[2]       HCJ 746/07 Ragen v. Ministry of Transport (Jan. 5, 2011) [https://versa.cardozo.yu.edu/opinions/ragen-v-ministry-transport]

[3]       HCJ 153/87 Shakdiel v. Minister for Religious Affairs [1988] IsrSC 42(2) 221 [https://versa.cardozo.yu.edu/opinions/shakdiel-v-minister-religious-affa...

[4]       HCJ 4541/94 Miller v. Minister of Defense [1995] IsrSC 49(4) 94 [https://versa.cardozo.yu.edu/opinions/miller-v-minister-defence]

[5]       HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Welfare [1998] IsrSC 52(3) 630 [https://versa.cardozo.yu.edu/opinions/israel-womens-network-v-minister-l...

[6]       CrimA 517/06 Boaz Manor v. KPMG Inc. (July 24, 2007)

[7]       CrimA 126/62 Dissenchik v. Attorney General [1963] IsrSC 17(1) 169 [https://versa.cardozo.yu.edu/opinions/dissenchick-v-attorney-general]

[8]       CrimA 519/82 Greenberg v. State of Israel [1983] IsrSC 37(2) 187

[9]       CrimApp 4445/01 Gal v. Katzovshvili, [2001] IsrSC 56(1) 210

[10]     LCrimA 3888/04 Sharbat v. Sharbat [2004] IsrSC 59(4) 49

[11]     CrimA 1160/98 SHIZAF Marketing, Promotion and Construction Projects v. Ashkenazi [2000] IsrSC 54(1) 230

[12]     LCrimA 48/98 Ezra v. Zelezniak [1999] IsrSC 53(3) 337

[13]     CA 371/78 Hadar Lod Taxis v. Biton [1980] IsrSC 34(4) 232

 

 

The Supreme Court sitting as the High Court of Justice

(Before: Deputy President H. Melcer, Justice (emer.) U. Shoham, Justice D. Mintz)

 

 Judgment

(Nov. 1, 2018)

 

Deputy President H. Melcer

1.         This is an appeal on the decision of the Jerusalem District Court, sitting as a Court for Administrative Affairs (Judge Y. Merzel) in AP 49319-05015 of June 7, 2017, in the matter of a request filed by Respondents 1-6 (hereinafter: the Respondents), in the framework of which an order was issued against the Appellants under the Contempt of Court Ordinance (hereinafter: the Ordinance), as explained below.

I will now present the information necessary for deciding the entire matter.

 

Factual Background

2.         On April 26, 2015, the Respondents filed an administrative petition with the Administrative Affairs Court (hereinafter: the administrative petition), concerning the removal of signs placed at various locations throughout the city of Beit Shemesh containing offensive demands, requests and statements concerning women (hereinafter: the signs). The petition was directed against the Appellants – the Beit Shemesh Municipality (Appellant 2), and the Mayor, Mr. Moshe Abutbul (Appellant 1).

To complete the picture, we would note that in June 2012, the Respondents approached the Appellants by various means, demanding that the signs be removed, and on Feb. 20, 2013, Respondents 1-4 even sued the Appellants in the Beit Shemesh Magistrates Court (CC 41269-02-13), claiming that they must compensate them for the humiliation and the offense caused to them due to the Appellants’ failure to remove the signs as required.

3.         On Jan. 25, 2015, the Magistrates Court (Judge D. Gidoni) ruled that the signs that were the subject of the claim convey an offensive, discriminatory message, and that the Appellants bear a conceptual and concrete duty of care to act to remove them. This ruling also determined that the Appellants were negligent in not taking reasonable action to remove the signs, putting them in breach of their duty of care. The Magistrates Court awarded each of the four plaintiffs in that proceeding compensation in the amount of NIS 15,000, as well as legal costs.

4.         After a long period during which the Respondents waited for the signs to be removed by the Appellants, the Respondents filed the said administrative petition. On June 19, 2016, at the conclusion of the deliberations on the administrative petition, the agreements arrived at by the parties were given the force of a judgment (hereinafter: the consent judgment), with the following determinations:

       a.         The Respondents [in the present case – the Appellants – H.M.] once again inform the Court that signs of the type that are the subject of the petition are illegal.

       b.         The Respondents [in the present case – the Appellants – H.M.] have the authority to exercise enforcement measures in respect of the violation of the law by the placement of signs of this type.

       c.         The Respondents [in the present case – the Appellants – H.M.]     will exercise all powers of enforcement at their disposal under law (including imposition of fines) in order to bring about the removal of the signs that are the subject of the petition, as well as other signs that bear the same illegality. Effective enforcement measures will be implemented immediately and continuously, and this matter will be accorded importance in the framework of the enforcement and budgetary priorities of the Municipality.

        d.         In particular, and in relation to the sign marked “A”, a request will be filed with the Beit Shemesh Court for Local Affairs to enter into courtyards within 15 days from today, in order to obtain from the Court an order like the order that was issued in the past, following which the Respondents [in the present case – the Appellants – H.M.] themselves will remove the signs. This will not be deemed to exhaust any other enforcement measures that are available to the Respondents [in the present case – the Appellants – H.M.] under any law, including the imposition of fines.

        e.         The signs that were marked B and G will be removed by the authorized bodies on behalf of the Respondents [in the present case – the Appellants – H.M.] within 21 days of today. This will not be deemed to exhaust any other enforcement measures that are available to the Respondents [in the present case – the Appellants – H.M.] according to any law (including the imposition of fines). The Respondents [in the present case – the Appellants – H.M.] undertake to remove these signs, if they are put up again, as soon as possible, subject to effective enforcement constraints.

        f.                      Within 15 days from today, an official request (complaint, if necessary) will be made by the Respondents [in the present case – the Appellants – H.M.] to the Beit Shemesh precinct of the Israel Police in regard to the  specific investigation of the placement of the signs marked A, B and G. A copy of the request will be sent to the Attorney General’s representative.

        g.         I once again notify the Court [this refers to counsel for the Municipality, Adv. Gastwirth – H.M.] that the Municipality requested (some 50) cameras from the Ministry of Public Security as part of the “City Without Violence” program, with a recommendation to place them, inter alia, on Nahar Hayarden Street, at the corner of Yehuda Hanasi (sign A) [additions mine  – H.M.].

5.         On Feb. 20, 2017, some eight months after the consent judgment was handed down, the Respondents filed a request with the Administrative Affairs Court, pursuant to the Ordinance, asking the Court to compel the Appellants to comply with the provisions of the consent judgment granted in the framework of the administrative petition. In the framework of the request, it was argued that despite the long string of events that preceded the filing of the administrative petition, and despite the ongoing harm to women in the city of Beit Shemesh, the Appellants are not exercising significant, effective enforcement measures in accordance with their undertakings in the consent judgment.

6.         On June 7, 2017, the Administrative Affairs Court granted the request in part, and ruled that the consent judgment had indeed been violated with respect to the sign marked “A” in the administrative petition, which was placed on the corner of Nahar Hayarden and Yehuda Hanasi Streets, and the signs that had been placed on Hazon Ish Street in place of the signs marked “G”. It ruled that this breach constitutes sufficient grounds for imposing a conditional fine upon the Appellants. The Court ruled that if all the said signs are not removed by July 6, 2017, the Appellants will pay a fine of NIS 5,000 for each day of delay in their removal. At the same time, the Court ruled that the part of the request concerning new signs placed after the consent judgment, regarding which no concrete order had been issued in that judgment, could not be granted, in light of the procedural framework of contempt of court proceedings.

7.         The present appeal was filed against this decision of the Administrative Affairs Court, together with a request to stay execution of fine. At the conclusion of the hearing before me on the request to stay execution, on July 6, 2017, I ordered that the decision of the Administrative Affairs Court, which was the subject of the appeal, be stayed in part, until such time as a different decision be handed down and subject thereto, provided that the following conditions be met:

a.         The two signs placed on Hazon Ish St. in Beit Shemesh, which call for the banishment of women from the sidewalk on the said street (a photograph of one of these two signs was submitted to the Court file and marked “G”), will be removed by inspectors on behalf of the Respondents [in the present case – the Appellants – H.M.], with the help of the Israel Police, within 14 days of today.

b.         Within fourteen days of today, cameras will be installed by the Municipality, and funded by it, on Hazon Ish St. for the purpose of identifying those attempting to replace such prohibited signs on the street, or of those spraying graffiti with similar content.

c.         The Respondents [in the present case – the Appellants – H.M.] will submit, by July 24,2017, a report on the execution of the instructions in ss. (a) and (b) above, and on all the legal actions and steps that they have taken in order to implement the removal order that was issued by the lower court in respect to the sign placed on Nahar Hayarden St., corner Yehuda Hanasi, in Beit Shemesh, in which women were exhorted to appear in the neighborhood, and in the Hareidi (ultra-Orthodox) shopping center there, in modest dress (a photograph of the sign was submitted to the Court file and marked “A”) (additions mine – H.M.).

8.         Subsequent to the above decision, counsel for the Appellants provided an update in their report of July 20, 2017 as follows:

a)         The two signs that were placed on Hazon Ish St. in Beit Shemesh, which call for banishing women from the sidewalk of the said street, were removed by inspectors on behalf of the Appellants, with the help of the Israel Police, on July 19, 2017 in the afternoon, but the signs were replaced during the night.

b)         On July 11, 2017, Appellant 2 installed wireless cameras, but on July 12, 2017, unknown persons damaged the cameras, rendering them inoperable.

c)         The Appellants concluded that the most effective way to remove the sign (marked “A”) was not by means of the order to enter courtyards and remove the sign forcibly, but by imposing fines on the owners and residents of the building on which the sign was hung.

Accordingly, the Appellants once again requested a stay of execution of the decision of the Administrative Affairs Court until the decision on the appeal.

9.         In her response, counsel for the Respondents stated that the Appellants “continue to drag their feet unceasingly in all their handling of the signs.” She argued that reasonable conduct on the part of the Appellants would be to remove the signs on Hazon Ish St. at night, in order to reduce opposition and friction, but Appellant no. 2 chose to remove them in the afternoon; the Appellants did nothing to repair the cameras; imposition of fines had not as yet brought about the removal of the signs, and in any case, under the circumstances, the conditions for staying execution have not been met.

10.       Counsel for Respondent 7 explained in his response that from the report of the Appellants and from the response of the police it emerges that the Appellants did not act in complete coordination with the Israel Police, and it is possible that had there been such coordination, the result would have been different with respect to the signs that were removed and replaced on July 19, 2017. Counsel for Respondent 7 further argued that the measures taken by the Appellants were insufficient, and that the Appellants are not fulfilling their obligations under the consent judgment. In this context, it was argued that limiting action to the imposition of fines does not amount to fulfilment of the  consent judgment, and once the Appellants made it clear both in the oral hearing and in their response that they do not intend to take action to remove the sign (marked “A”) – there is no justification for staying execution of the decision of the lower court.

11.       On Sept. 4, 2017, I denied the request to stay execution, and ruled that the partial stay of execution that I ordered on July 6, 2017 will lapse on Sept. 10, 2017 (hereinafter: commencement date). I also ruled that the Appellants will pay the costs imposed upon by the  Administrative Affairs Court as of the commencement date, unless the consent judgment is fully and irrevocably carried out prior to the commencement date.

12.       I shall now turn to the arguments of the parties to the appeal.

Arguments of the Parties to the Appeal

13.       According to the Appellants, the District Court erred in its ruling that they were in breach of the consent judgment, and alternatively, even if there had been a breach, in the special circumstances of the case at hand there was no justification for invoking the extreme, exceptional tool of contempt of court proceedings against them. They also argued that the consent judgment could be interpreted in more than one way, and that under the circumstances, there had not been a clear, unequivocal breach – which would have been a fundamental condition for invoking the mechanism of contempt of court proceedings.

In this context it was argued that the District Court did indeed rule that the Appellants had been in breach of the consent judgment in relation to the sign marked “A”, but the consent judgment did not set a time for removing the sign. Therefore, the Appellants were authorized, so they say, to exercise their discretion in regard to the enforcement policy to be adopted in relation to the said sign. Accordingly, after weighing all the relevant considerations, including the fact that the said sign had already been removed in the past, but replaced a few days later, the Appellants concluded that the most effective way of handling this sign was by imposing fines on the owners and residents of the building on which the sign was placed, and enforcing the said fines.

It was further argued that the signs marked “G” were indeed removed by the Beit Shemesh Municipality on July12, 2016, but were replaced on August 8, 2016. The District Court ruled that the Appellants were in breach of the consent judgment in regard to the new signs that were put up, but as opposed to the signs marked “G”, no date had been set for the removal of the new signs, and all that had been decided was that they should be removed “as soon as possible, subject to constraints upon effective enforcement”. Therefore, the Appellants argue that the obligation to remove them in the framework of the consent judgment had no time limitation, but was subject to their discretion. In this context, and after the Appellants weighed all the relevant considerations, including the fact that the signs concerned had been removed several times in the past but replaced each time, the Appellants concluded that the most effective way of handling these signs was not by removing them, but by surveillance of those responsible for posting them.

14.       The Appellants further argue that the caution that must be exercised in relation to invoking the extreme and exceptional tool of contempt of court is even more necessary when, as in our case, the matter concerns enforcement of the policy of an administrative authority. This, according to the Appellants, is because the court will not interfere in the discretion of the competent authorities in determining enforcement policy, other than in the most exceptional cases in which there is a total disregard for enforcement of the law, or unreasonable avoidance thereof on the part of the authorities. The Appellants claim that this is not the situation in the present case. In their view, despite the difficult situation that exists in Beit Shemesh, which includes, inter alia, violence towards municipal workers and inspectors, the Municipality has acted and continues to act to enforce the law in the matter of the signs. Under these circumstances, and bearing in mind that, in any case, the local police take extensive action against all acts of violence, the responsibility for all that concerns the removal of the signs should fall, according to the Appellants, on the police as well, and not only on the Beit Shemesh Municipality. Furthermore, examination of the breach of the consent judgment and the conducting of contempt of court proceedings should be carried out against the backdrop of the harsh reality that pertains in the city with respect to enforcement of the law in general, and with respect to handling the matter of the modesty signs in the city in particular. The Appellants also argue that the rulings of the District Court did not give due weight to the fact that the Appellants invested, and are still investing, great efforts in dealing with the matter of the signs, and these efforts have indeed brought about the removal of some of the signs, even though new ones have replaced them.

15.       As opposed to this, the Respondents argue that although their arguments were accepted in all the legal proceedings, and despite the fact that the Appellants were ordered to remove the signs, the situation today is that signs are still hanging throughout the city. They argue that the Appellants have displayed a consistent and continuous attitude of contempt for the rights of the women in the city, as well as for the principle of the rule of law, throughout the entire legal proceedings. They say that the Beit Shemesh Municipality takes great pains to avoid enforcing the by-law that it itself enacted, and that the Mayor even declared in the past that he supports the hanging of signs. As such, the Respondents further argue that the Appellants are in clear breach of the consent judgment, deliberately and by virtue of an intentional decision, and that they ignore the fact that this is a final judgment that includes clear obligations, and now they wish to reopen their arguments with respect to the means that they should adopt for the purpose of dealing with the signs.

The Respondents also claim that the Appellants are acting with a total lack of good faith, and that they never removed even a single sign without a legal action having been initiated in court. The Respondents add that the Appellants are in contempt not only of the consent judgment, but also of the decision of this Court of July 6, 2017, because new cameras were not installed after the damaging of the cameras, and no additional attempt was made to remove the signs marked with the letters “A” and “G”. The Respondents further note that the obligation to pay the fine is imposed on the Appellants up until such time as the signs are removed permanently, whereas a one-time removal, following which the sign is hung again within a few hours, does not exempt the Appellants from their obligation under the consent judgment to pay the fine and to exercise effective means of enforcement to again remove the signs that were replaced, as well as the other signs hanging in the city.

16.       According to Respondent 7 – the Attorney General – Appellant 2 did not fully fulfill its obligation under the consent judgment to exercise its powers in relation to signs that are hung within its boundaries in an effective, satisfactory manner. Respondent  7 emphasized that the signs are an extreme violation of human rights, including the right to equality, to freedom of movement, to dignity and to autonomy. It was also contended that the conduct of Appellant 2 in implementing the consent judgment is inconsistent with the decision of this Court of Sept. 4, 2017, in the framework of which it was explained that the obligation to pay the fine imposed on the Appellants in the contempt proceedings applies to the Appellants up until such time as the signs are completely removed. Clearly, pinpoint removal, following which the signs are immediately replaced, does not relieve the Appellants of their obligation. In this context, it was argued that the Beit Shemesh Municipality did not adopt all the requisite measures to remove the signs, and that it almost entirely refrains from enlisting the aid of the Israel Police for this purpose.  The Appellants did indeed attempt to comply with the consent judgment, but according to the Attorney General, they did not make the requisite effort, given their obligation to comply with the judgment, and in view of the extreme offensiveness of the signs. It is further claimed that following the action taken by the Municipality to remove the signs on Sept. 10, 2017, and given that the Appellants knew that new signs had been hung, the Municipality has confined itself merely to imposing fines. Clearly, since the Appellants refrained from implementing effective enforcement measures that would lead to the permanent removal of the signs addressed in the consent judgment for more than two months after the time of their pinpoint action, their one-time action cannot be regarded as implementation of the judgment, but rather, as disregard of the duty it imposes on them. Respondent 7 explained that the Israel Police is prepared to extend to the Municipality whatever assistance is necessary, but the burden of initiating and executing enforcement measures lies with the Beit Shemesh Municipality and not with the Israel Police. In addition, regarding the Appellants’ claim that the measure that they adopted is the most effective, it was argued that the approach adopted by the Beit Shemesh Municipality is effective to a certain degree, but it cannot replace the primary action of removing the signs.

Unfolding of Events since the filing of the Appeal

17.       On Dec. 4, 2017, a hearing on the appeal was held before this Court, in the course of which the parties repeated their main arguments. In the course of the hearing, the Appellants stated that the signs – the subjects of the contempt motion – as well as other signs that had been hung in the meanwhile, with similar wording, would be removed by Dec. 18, 2017. The representative of the State Attorney, with the knowledge of the Israel Police, declared that the Israel Police would help the Appellants remove the signs, and would increase its presence in the relevant areas. We granted these declarations the force of a judgment, and ordered that counsel for the parties provide an updating report on implementation of the above by Dec. 21, 2017.

18.       On Dec. 14, 2017, the Appellants provided an update in which they notified the Court that on Dec. 11, 2017 a widespread operation had been conducted by the Appellants, accompanied by the Police, to remove all the signs placed throughout the city. In the framework of this operation, which was  met by riots and disturbances of the peace, six of the eight existing signs were removed by municipal inspectors. The Appellants claimed that the two remaining signs were not removed due to the decision of the Police to stop the operation for fear of matters getting out of control. Several hours after the end of the operation, a number of small signs were hung, and later, the large sign, marked “A” was once again replaced. Subsequently, on the night of Dec. 12, 2017, the Appellants began another extensive operation to remove the signs in the city, removing no less than 15 signs throughout the city, including the sign marked “A”. In addition to the above operations, the Appellants said in their updating report that they will continue to impose fines on the owners and residents of the properties on which the signs appear, and they will examine how and when it will be possible to install a camera at the corner of Yehuda Hanasi and Nahar Hayarden streets, where the large sign marked “A” appeared.

In light of the above, the Appellants asked the Court to rule that there is not, nor was there, reason to pursue contempt of court proceedings against them, and accordingly to grant the appeal and reverse the decision of the District Court on the matter.

19.       From the response of counsel for Respondent 7 that was submitted to this Court on Dec. 22, 2017, it emerges that on Dec. 14, 2017, extensive action was indeed taken, in which additional signs were removed. It was also reported that the Israel Police increased its presence in the streets of Beit Shemesh, with emphasis on those streets where trouble was likely, and that it is dealing with events that occurred in response to the removals, providing a response to developing events and helping the Beit Shemesh Municipality in carrying out its duty to remove the signs. It was also noted that the Israel Police attempted to initiate additional actions to remove the signs, and to this end it approached certain people in the Municipality, but the cooperation on the part of the Beit Shemesh Municipality, so it was claimed, was limited. In this context, the response of Respondent 7 described four cases in which police officers from the Beit Shemesh station contacted various people in the Municipality in order to initiate action, but either there was no response to their request, or the response was negative.

20.       On Dec. 28, 2017, the Respondents filed their response to the Appellants’ report. According to the Respondents, as opposed to the picture of the situation that the Appellants sought to paint, there were no widespread, violent riots and disturbances of public order, but gatherings of several dozen citizens at most, against whom no measures were taken to disperse the demonstrations. The Respondents also claimed that, as emerges from the response of Respondent 7, the Appellants are again dragging their feet and refraining from seeking police help for the purpose of further removal of the signs. It was also explained that there are currently more signs hanging throughout the city of Beit Shemesh than were hanging at the time that the proceedings were conducted in this Court on Dec. 4, 2017. The Respondents also said that in addition to the many signs, graffiti had been spayed, and a great number of stickers calling for modest dress affixed (and not removed by the municipal inspectors). The Respondents also said that to the best of their knowledge, to this day no suspects have been arrested for placing signs or for spraying the offending graffiti. It was further noted that on Dec. 15, 2017, a notice calling upon people to harass Respondents 1-5 was distributed, aimed at causing them to desist from their legal battle against the modesty signs. The notice contained the personal details of Respondents 1-5, and after its distribution, Respondents 1-5 began receiving threatening calls.

The Respondents further contended that neither the Appellants nor the police are doing what they ought to be doing to put an end to the shameful phenomenon that has made its appearance, according to them, throughout Beit Shemesh. They said that despite the Appellants’ declaration that they are pursuing the process of imposing fines on the residents of the buildings on which the signs are placed, from an investigation conducted by the Respondents it emerges that hundreds of hearings that had been scheduled for arraignments in cases in which those accused of placing the signs opted for a trial had been postponed at the request of the Municipality. Furthermore, despite the fines having been imposed many months ago, the Municipality has not taken any steps to collect them. In addition, it was stressed that the cameras that the Appellants were supposed to install at the main points of friction have not yet been installed either. The Respondents also noted in their response that following the hearing that was held in this Court on Dec. 4, 2017, Appellant 1, the mayor of Beit Shemesh, was interviewed on the Reshet Beit radio station, and he stated that Respondents 1-5 must respect the sensibilities of the residents and desist from acts of provocation.

21.       In their response dated Jan. 1, 2018, the Appellants argued that they had proved, time after time, that they are committed to an uncompromising war on the phenomenon of the signs, and that even if some of the signs are replaced before being removed again, there is no real justification for pursuing the contempt proceedings against them. The Appellants argued that in the course of a period of two weeks, they conducted three operations to remove the signs. Each such operation imposed a heavy financial burden on the Beit Shemesh Municipality, and it is therefore not able to carry out such operations on a daily basis. In this context it was further argued that it is the police that have failed time after time to eradicate the phenomenon of the signs, and in an attempt to hide its failures it seeks to lay the full responsibility on the shoulders of the Appellants. In all that concerns the installation of cameras, it was explained that the Municipality acquired “a camera with face-recognition technology and real-time transmission […] but as of the present time, the police have not yet decided on the place and time for installation of the camera.”

22.       After a careful reading of the updating reports from the parties, on Jan. 15, 2018 I ordered that a further hearing be conducted on the appeal. The parties would be allowed to submit additional updates on their behalf until three days before the date of the hearing, which was set for Feb. 18, 2018.

23.       On Feb. 15, 2018, the parties submitted updating reports in accordance with the order to do so. In the framework of the report submitted on behalf of the Appellants, it was claimed that they continue in their consistent, vigorous activity against the phenomenon of the signs in the city, which they say has led to a significant decline in the dimensions of the phenomenon. The report also mentioned that on Jan. 15, 2018, the Municipality embarked on an additional, extensive operation, accompanied by the police, to remove the signs. The Appellants claimed that the said operation was met by violence and disturbances, and that 18 signs were removed in the operation, including large signs that had been hung on buildings. These were removed by means of a crane. It was argued that following the above operation, no large signs remain on buildings. The few remaining signs are small, or stickers that call for maintaining modest dress, and their contents are not, according to them, offensive, as were the contents of the large signs that were posted in the past. It was also mentioned that the signs marked “G”, which call to refrain from using the sidewalk, were removed by the Appellants on the evening of Feb. 14, 2018, and that it is their intention to continue to take action against all the signs throughout the city, including the small signs and the stickers that call for maintaining modest dress. It was further mentioned that together with removing the signs, the Appellants are taking legal action against the owners of the apartments in the buildings on which the signs were hung. In this framework, and following the fines imposed on the owners and their request to be tried for the said fines, the Appellants said that of late, plea bargains have been made with some of the residents, which include payment of the fines and an undertaking to refrain from committing offenses under the Beit Shemesh (Notices and Signs) By-Law, 5715-1955. On the subject of the cameras, it was argued that the Appellants are acting to install the cameras throughout the city, but in order to decide on the place and time, serious, systematic groundwork is being done by the city in cooperation with the police.

24.       The updating report submitted by Respondent 7 stated that the Israel Police is continuing to take various steps to provide assistance and security support to the Beit Shemesh Municipality in its actions to remove the signs and to prevent their replacement with new signs. It was also stated that the Israel Police holds frequent discussions with various entities in the Beit Shemesh Municipality, with the aim of initiating additional action to remove the signs. In this framework, on Dec. 26, 2017 the Beit Shemesh Municipality took action to remove signs, with the help of police forces, and 15 signs were removed. As was also stated in the updating report submitted by the Appellants, additional, similar action was taken on Jan. 15, 2018,  in the framework of which 18 signs were removed. According to the report, this action was met by various provocations and disturbances, and only the police presence made it possible for the Municipality inspectors to continue carrying out their job as planned. It was also stated in the report that the police and the Municipality carried out an advance reconnaissance to remove the graffiti, and that the Municipality is waiting for a quote to carry out the removal.

25.       The Respondents’ updating report stated that since the hearing held on Dec. 4, 2017, there had indeed been several operations to remove the signs, but some of the signs had been replaced. In addition, many stickers calling for modest dress had been affixed, and nothing came of calls to the municipal inspectors to have them removed. In this context, the Respondents noted that most of the signs and the stickers are located in the public domain at a low level, and therefore, it is not physically difficult to remove them. According to the Respondents, the fact that the signs and the stickers are still evident throughout the city means that both the Municipality and the police are not doing enough to eradicate the phenomenon. The Respondents emphasized in their report that to date, cameras have not been installed at the friction points in the city, despite the fact that in the consent judgment, the Appellants declared that they had applied to the Ministry of Public Security to receive cameras as part of the “City Without Violence” project. It was stated that the Ministry of Public Security approved a budget for the Municipality for seven security cameras, but contrary to its undertaking, the Municipality chose not to install these cameras in the areas that were the main friction points. It was further stated that despite the willingness of the Ministry of Public Security to authorize municipal inspectors in Beit Shemesh as support inspectors, the Municipality refuses to ask the Ministry of Public Security to authorize the inspectors, thereby preventing, in effect, the reinforcement of the security set-up in the city, in a way that would help in enforcing the law and eradicating the phenomenon of the signs.

26.       On Feb. 18, 2018, at the end of the additional hearing before us, in which we learned of a degree of progress that had been made in carrying out the provisions of the consent judgment, we made it clear in our decision that this progress is still insufficient in the circumstances, and that the Appellants must act, within 30 days –

        a.  To install seven cameras in the neighborhood in which there are violations, the budget for which has been approved for the Municipality by the Ministry of Public Security and the Israel Police (in the framework of the “City Without Violence” project).

        b.  To remove the large offending sign that is still in place – at the corner of Nahar Hayarden St. and Yehuda Hanasi St. (45 Rabbi Elazer St.) [the sign marked “A” – H.M.].

        c.  To remove the offending signs that were hung in the city, and to erase or cover the graffiti relating to the exclusion of women.

        d.  To move forward with the proceedings that were initiated against owners or residents of the buildings who aided in hanging the offending signs/notices.       

        e.  To remove immediately any new sign or notice that is hung.

(Emphases added – H.M.)

It was also ruled that the Appellants must report by March 20, 2018 on the actions taken by the Municipality, and the other parties must respond to their report by March 26, 2018.

27.       On March 20, 2018, the Appellants submitted their updating report. The report stated that after the hearing, three dates were set for operations to remove the signs. Accordingly, on Feb. 27, 2018, the Municipality carried out an extensive operation, with police support, to remove the signs. It was argued that in the course of this operation, hundreds of stickers, dozens of graffiti inscriptions and a number of signs, including the large sign marked “A”, were removed. The operation was met by disturbances of the peace, and there was even one incident of stone-throwing at a municipal vehicle which had municipal employees inside. After the operation, several graffiti inscriptions reappeared, including at the location of the sign marked “A”, and the report stated that these will again be removed in the course of the operation planned for the near future.

As for legal proceedings against the residents of the buildings on which the signs were hung, the Appellants said in their report that subsequent to the fines that were imposed on the residents and their requests to go to trial, plea bargains were signed and approved in respect of all the residents. These plea bargains included payment of the fines and an undertaking to refrain from committing offenses of this type, and most of the residents have already paid the fines that were imposed on them in the framework of the agreements.

Concerning the installation of the cameras, the Appellants said that this was a complex matter, and that it was not possible to complete the task within 30 days of the decision of this Court. They said that for the purpose of installing the cameras, the Ministry of Public Security allocated a budget of NIS 318,000, and that the Municipality intended to use this budget, and even to add to it, in order to install as many cameras as possible, but that this was likely to take up to 150 days (note: in the meanwhile, 150 days have passed and the Appellants have not reported that the installation has been carried out).

28.       On March 29, 2018, the Respondents submitted their response to the above report. Concerning the installation of the cameras, they said that the Municipality has been declaring its intention to install cameras in the sensitive areas for a long time, but these intentions have remained on paper, and in fact, not even one camera has been installed in those areas. The Respondents claim that although there is a budget, and although the Municipality has been saying for years that it intends to install cameras in the areas that are the main centers of dispute, it continues to refrain from installing the cameras, and it thus continues to disregard the decisions of this Court. In this context, the Respondents explained that there are dozens of cameras in every neighborhood in Beit Shemesh – except for those neighborhoods that are the main trouble-spots. It was also claimed that the proceedings conducted by the Municipality involved residents who were not involved in hanging signs, and only by installing cameras will it be possible to locate and initiate proceedings against those responsible for hanging the signs and violating the by-law.

The Respondents further maintain that the Appellants’ claim that “there are no longer any large signs on buildings throughout the city” is not true. They say that the large sign, marked “A”, was indeed removed, but that the same building now bears graffiti with identical wording to that of the sign that was there, and despite several actions by the Municipality to remove the signs, the city is still festooned with signs, stickers and graffiti  calling for modest dress.

29.       The updating report from Respondent 7, submitted on March 29, 2018, states that the Israel Police continues taking various steps to provide help and security support to the Beit Shemesh Municipality in its activity to remove the offending signs and prevent additional signs being hung. It also mentions that together with the various operations that took place on Feb. 15, 2018, Feb. 27, 2018, March 6, 2018 and March 21, 2018, in coordination with the Beit Shemesh Municipality, in which signs, stickers and graffiti were removed, the Israel Police reinforced its presence in the relevant areas within the boundaries of the city of Beit Shemesh. 

As for the of installation of cameras, the claim was that the Israel Police did indeed recommend that the Municipality erect high poles in order to cover a wide area and prevent vandalization of the cameras. However, a letter sent by the Chief of Police in Beit Shemesh to municipal officials explained that this was only a recommendation. Therefore, the delay in installing the cameras was not caused by the Israel Police, and the responsibility for their installation lies with the Beit Shemesh Municipality alone.

30.       On April 24, 2018, the Respondents reported in writing to the Court that in the month since the responses were submitted, the situation in Beit Shemesh in relation to the signs had deteriorated significantly. They noted that as of the date of writing the notice, there had been no progress on the installation of cameras. Moreover, graffiti was spreading, and the serious harassment of girls and women in the city in regard to modesty was continuing.

31.       On May 6, 2018, the Appellants submitted their response, in the framework of which they denied outright the assertions of the Respondents that they are disregarding the decisions of this Court. It was further emphasized that the present concern is an appeal of the decision of the District Court according to the Ordinance, on the matter of the consent judgment. The Appellants claim to have already fulfilled all the provisions of the consent judgment, and everything that is being carried out in accordance with the decisions of this Court is well beyond the scope of the consent judgment. They also claimed that, as is evident from the many updating reports that were submitted to this Court both by the Appellants and by Respondent 7, over the last year the Municipality conducted many operations with police support to remove the signs and the graffiti throughout the city. It was also argued that the consistent, vigorous actions of the Municipality, both on the physical level of removing the signs and on the legal level of taking action against the residents of the buildings, has led to the almost total eradication of the phenomenon of signs in the city.  However, alongside the gradual eradication of the phenomenon of the signs, the phenomenon of stickers and graffiti has grown. The Appellants declared that in accordance with the decisions of this Court, they acted and will continue to act to remove the stickers and the graffiti, as well. At the same time, they argued that hanging the signs, affixing the stickers and painting graffiti in the public domain constitute criminal offenses, and the responsibility for preventing them lies primarily with the police, which alone has the tools to find and arrest the perpetrators.

As for installing cameras, the Appellants notified the Court that the Municipality had issued a tender to the suppliers of the Ministry of Public Security for the installation of seven cameras, but the budget allocated by the Ministry of Public Security is much lower than the one bid that was tendered, and therefore a meeting of the Municipality was called for the purpose of approving the bid and attempting to lower the price.

Deliberation and Decision

32.       After studying the arguments of the parties, reviewing all the material that was submitted to us, and hearing the arguments of counsel for the parties, my position is that the appeal must be denied, and I will suggest to my colleagues that we decide accordingly. I shall explain below the reasons for this conclusion. However, before I address the questions that must be decided in this appeal, I will say a few words about the general phenomenon of the exclusion of women from the public domain.

Exclusion of Women from the Public Domain

The term “exclusion of women” refers to sweeping discrimination on the basis of sex, the main characteristic of which is withholding from women, due to the fact that they are women, the possibility of receiving public services, of participating in public activity, or of maintaining a presence in the public sphere. The exclusion of women is liable to manifest itself in several ways. One expression of it, for example, is gender separation, whereby certain public services are in fact provided to women, but in a separate manner. The exclusion of women may express itself in another form when women are prevented or categorically restricted from receiving services or from active participation in activity that takes place in the public domain.

34.       The practices that are suspect as being exclusionary of women give rise, by their very nature, to different questions in a variety of legal spheres, the central one of which is the constitutional-public sphere. These practices emphasize the tensions surrounding the rights of women to equality, dignity, freedom of expression, autonomy, and freedom of occupation, as against opposing rights and interests deriving from the principles of multi-culturalism, freedom of religion and the desire to prevent offense to religious sensibilities (see: LCA 6897/14 Radio Kol Barama Ltd. v. Kolech – Religious Women’s Forum [1]  (hereinafter: Kol Barama); HCJ 746/07 Ragen v. Ministry of Transport [2] (hereinafter: Ragen); Ruth Halperin-Kaddari, Women, Religion and Multiculturalism in Israel, 5 ucla j. int'l & for. aff. 339, 362-66 (2000); Susan M. Okin, Is Multiculturalism Bad for Women? in Is Multiculturalism Bad For Women? 9-24 (Joshua Cohen, Matthew Howard & Martha C. Nussbaum, eds., 1999)).

35.       The exclusion of women in Israel sometimes involves a unique element that includes religious considerations, due to which we must ask whether, in special circumstances, it is possible to justify separate, or limited, treatment of women in the public domain, in view of the whole array of relevant interests (see, inter alia: Kol Barama case [1]; Alon Harel and Aaron Shenrech, The Separation Between the Sexes on Public Transport, 3 Alei Mishpat 71 (2003) (Heb.); Noya Rimmelt, Separation Between Men and Woman as Sexual Discrimination, 3 Alei Mishpat 99 (2003) (Heb.); Zvi Traeger, Separation Between Men and Women as Sexual Harassment, 35 Iyyunei Mishpat 703, 709-13 (2013) (Heb.); Alon Harel, Regulating Modesty Related Practices, 1 Law and Ethics of Human Rights 211 (2007)).

36.       The Report of the Ministry Team for Investigation of the Phenomenon of Exclusion of Women in the Public Domain (Jan. 5, 2012) (hereinafter: the Ministry Report), whose conclusions were adopted by the Attorney General in May 2013, examined in depth the phenomenon of the exclusion of women in this context. Gender separation and distinction in cemeteries, in state ceremonies, on public transport and in regard to the freedom of movement of women as pedestrians in ultra-Orthodox neighborhoods were all examined, including the various cultural and religious (halakhic) interests. As mentioned in the Ministry Report, the criterion that was adopted for considering the constitutionality of each occurrence that was suspect of being exclusionary of women was the criterion that was formulated in the case law of this Court regarding discrimination, namely, the question to be asked is whether there is a “relevant difference” that stems from the nature and the substance of the public services that are provided that would justify gender separation. At the same time, it was noted that in the framework of this examination, the unique cultural aspects of the ultra-Orthodox community must also be considered, including the question of how to relate to the fact that the women in the ultra-Orthodox community are a group that constitutes a “sub-minority” within the ultra-Orthodox minority (paras. 13, 25 and 242 of the Ministry Report; Kol Berama case [1]).

37.       At this point it should be noted that not every activity or policy that is said to constitute “exclusion of women” will necessarily be classified ultimately as prohibited discrimination, since the reality of life in these contexts is complex, and it does not permit the adoption of a simplistic, extreme approach with all its implications. Indeed, a practice that is suspect as being exclusionary of women will be examined on its substance, in accordance with its nature and characteristics, and according to the norms established in the case law (see, inter alia: Aharon Barak, Human Dignity: The Constitutional Right and its Daughter-Rights, vol. 2, 703-05 (2014) (Heb.); HCJ 153/87 Shakdiel v. Minister for Religious Affairs [3], 242-43; HCJ 4541/94 Miller v. Minister of Defense [4], 109-10; HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Welfare [5], 652-60 (hereinafter: Israel Women’s Network).

38.       “Modesty signs” are part of the disturbing phenomenon of excluding women from the public domain. Chapter 17 of the Ministry Report deals with the specific subject of the signs, and states that a local authority must refrain, insofar as possible, from allowing such exclusionary signs to be hung within its bounds, certainly in the public domain, in that they restrict the ability of women to move freely in that domain. The Ministry report makes it clear that placing signs in the public domain that call for women to dress in a modest manner, or to refrain from being in a certain place, expresses an illegitimate message whereby women are not free to use any part of the public space that they wish, or that their presence in that space is conditional upon being dressed in a certain way, even though the sign does not constitute an actual physical barrier limiting the public domain (see: p. 9 of the Ministry Report).

39.       The signs under discussion, which are displayed in the public domain, apparently announce the rules governing that location, and they instruct women to dress in accordance with certain norms, and not to be present in certain places. These rules receive written approval from the local people, institutions and city officials. The requirement is addressed to women only, and relates to the external appearance that is required of them, or to the place in which they may not be present. The signs present an explicit demand that imposes upon women the obligation to dress in accordance with a particular dress code as a condition for permission to pass through the places in which they are located. It may, in fact, be said that they constitute an expropriation of the public domain from women, converting it into private domain, while applying social pressure and infringing the autonomy and security of women. In such cases, therefore, the local authority has a duty to consider the said harm, act diligently to remove the signs, and also take action in accordance with the existing law against those who are responsible for their placement.

Moreover, to the extent that there is a concern about violence and disturbance of the peace due to action to remove the signs, the authority has a duty to ask the Israel Police for help with security, and to act in “real time” to restore order while exercising its relevant powers of enforcement. Indeed, the local authority may set an order of enforcement priorities, and as a rule, there is no room to interfere in its discretion when it has considered the benefit as opposed to the harm in certain enforcement activity, and decided ultimately to take other effective steps to achieve the appropriate purpose. At the same time, the action of the local authority must accord suitable weight to the severe breach of human rights caused by the placement of the signs described in the Ministry Report.

And now, a few preliminary words about the need for compliance with judicial orders.

The Rule of Law and Compliance with Judicial Orders

40.       The courts have ruled that the effectiveness of the rule of law is tested, inter alia, by the ability of the governing authorities to enforce judicial decisions and orders. Non-compliance with the orders of the court is a violation of the rule of law, and undermines the democratic foundations upon which society is built. For the purpose of dealing with the possibility of such violation, the courts were given power to employ certain means in order to ensure that the non-complier would eventually comply with the orders of the court that had been violated (see: CrimA 517/06 Boaz Manor v. KPMG Inc. [6] (hereinafter: Manor)). The process of preventing contempt of court is therefore essential to instill in society an awareness of the duty to respect the law and the orders of the judicial system in order to protect the status of the judiciary. From a broad perspective, the duty to enforce judicial orders is one of the distinguishing features of a free and democratic regime (Manor case; CrimA 126/62 Dissenchik v. Attorney General [7] , 179).

41.       In a different vein: the contempt of court process under sec. 6 of the Ordinance is a special one, which belongs in the “twilight zone between civil procedure and criminal procedure” (CrimA 519/82 Greenberg v. State of Israel [8](hereinafter: Greenberg); Manor case). The purpose of this process is to bring about compliance with the judicial order, and take it from the potential to the actual by means of a fine or imprisonment (CrimApp 4445/01 Gal v. Katzovshvili [9]). At this point it should be stressed that the contempt of court process is not essentially a punitive one; the measure that is applied by virtue of this process is in the nature of compulsion to perform an act, or to desist from an act, and it is not concerned with attaching a punitive taint to the person violating the order (LCrimA 3888/04 Sharbat v. Sharbat [10], 57-58; CrimA 1160/98 SHIZAF Marketing, Promotion and Construction Projects v. Ashkenazi [11]; LCrimA 48/98 Ezra v. Zelezniak [12], 346; CA 371/78 Hadar Lod Taxis v. Biton [13], 239-40).

Thus, the contempt of court process is a harsh enforcement process, whose ramifications, by way of imposition of an ongoing fine or imprisonment, may cause harm. The ongoing fine is liable to cause serious harm to the pockets and the property of a person, and imprisonment constitutes real harm to a person’s liberty – basic rights that are anchored in Basic Law: Human Dignity and Liberty. As such, enforcement measures under the Ordinance must be exercised with moderation, as the exception, and they must be confined to situations in which all other measures have been exhausted and have not helped, and all that remains is recourse to the process of contempt of court in order to ensure the enforcement of a judicial order (see: Manor case [6]; Greenberg case [8], at 192).

We shall now proceed from a review of the relevant normative rules to their application in the present case.

From the General to the Specific

42.       In the agreed judgment, the Appellants undertook, inter alia, to exercise all the enforcement powers available to them by law for the purpose of removing the signs that are the subject of the appeal, as well as other signs that are similarly unlawful. In addition, the Appellants agreed to ensure that enforcement measures would be adopted in a continuous and immediate manner, and that they would be repeated if the signs that had been removed were replaced. Moreover, this would be given high priority by the Municipality (see: secs. 3 and 5 of the consent judgment).

From the picture that emerges in the present matter, it is evident that the Appellants did not fully comply with the consent judgment, and they did not exercise all the enforcement powers available to them in order to remove the signs. In this regard, it should be stressed that at the end of the hearing held before us on Feb. 18, 2018, we ruled, further to the consent judgment, that the Appellants must “install seven cameras in the neighborhood in which there are violations, the budget for which was approved for the Municipality by the Ministry for Public Security and the Israel Police (in the framework of the project “City Without Violence”).” Clearly, installation of the cameras at the friction points constitutes an effective means of enforcement that allows for the identification of those violating the law in order to bring them to justice. As stated, the Ministry approved a budget for the Municipality for installing seven security cameras, but this has not yet been executed. From the updating reports submitted by counsel for the parties after the said decision was handed down it transpires that despite the undertakings to which the Appellants committed themselves with respect to installation of the cameras, no camera has been installed in the trouble-prone areas. As such, no option remains but to resort to the process of contempt of court in order to ensure enforcement of the said undertakings.

 Summary

43.       In exercising the powers of enforcement that it has been given, a local authority, like every governmental body, must bear in mind the need to protect the basic rights of every person, and to do all that is possible to put an end to the infringement of these rights (see: secs. 4, 11 of Basic Law: Human Dignity and Liberty). In the present case, beyond the expectation from the Appellants to act to eradicate the phenomenon of the signs, the Appellants also committed to do so several times, both in the framework of the consent judgment and in the hearings in the Court, as well as in the decisions that followed.

Regrettably, despite the serious violation of the basic rights of women, and despite the undertakings to which the Appellants committed themselves and which were given binding force of a consent judgment or of judicial decisions, the city of Beit Shemesh is still rife with unlawful signs, stickers and inscriptions. We cannot accept this grave state of affairs. The words of our colleague Justice Danziger in the Kol Barama  case [1] are apt here:

This is an illegitimate, unworthy phenomenon that has been describes as one that “delivers a mortal blow to human dignity” (HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Welfare [5], at 658-659), and it is a gross violation of the basic, fundamental rights of women. Moreover, the exclusion of women also has the potential of instilling a conception that the public domain belongs to “men only”, and consequently, of perpetuating gender-driven gaps in status and behaviors that by their very nature humiliate, degrade and debase women. This is particularly evident when women are forced to turn to the authorities and the courts for a declaration that they are “permitted” to execute basic acts in the public sphere, and clearly the harm that this involves is not limited only to their individual matter, but involves injury to society as a whole… [at para. 25].

44.       It is indeed evident that the Appellants took partial action in various ways in their attempt to comply with the court orders, but the reality proves that the measures that they adopted were insufficient. Since the Appellants have refrained to date from installing the seven cameras in the neighborhood in which there have been disturbances, and from again removing the signs that were taken down but replaced, the action that they have taken cannot be regarded as full implementation of the consent judgment and of the undertakings that followed, which were anchored in the decisions of this Court.

45.       Thus, in the event that the seven cameras are not installed in the neighborhoods in which there are breaches by Dec. 31, 2018, and in the event that the prohibited signs are not taken down by that date, I propose to my colleagues that the appeal before us be deemed as denied from that date on. On the other hand, if the Appellants act as stated by the above date, then bearing in mind the efforts made by the Appellants to date, and taking into account their compliance with the commitments they undertook (even if belatedly), the fines that were imposed upon them and that accumulated as of Feb. 18, 2018 and thereafter will be cancelled retroactively.

In addition, should the Appellants not comply with what is demanded of them here by Dec. 31, 2018, the Respondents will be permitted to renew the contempt proceedings in the Jerusalem District Court, and demand enforcement of the orders that were imposed by additional means, together with the fines.

46.       In conclusion, I would express the hope that the exclusion of women in the city of Beit Shemesh, the concern of these proceedings, will cease, and that the signs and the events described in this judgment will become a thing of the past.

 

Justice (emer.) U. Shoham

I concur.

 

Justice D. Mintz

I concur.         

 

Decided in accordance with the opinion of Deputy President H. Melcer

23 Heshvan 5779 (Nov. 1, 2018)

 

 

 

 

 

 

 

HCJ 4466/16

HCJ 8503/16

      HCJ 285/17

HCJ 6524/17

 

 

Petitioners in HCJ 4466/16:	Muhammad Alian and 6 others
Petitioners in HCJ 8503/16:	Yousef Abd A-Rahim Abu Saleh and 3 others
Petitioners in HCJ 285/17:	Sabih Abu Sabih
Petitioners in HCJ 6254/17:	Mohammad Ahmad Qunbar
	v.
Respondents:	1. Commander of IDF Forces in the West Bank
	2. Israel Police
	3. Office of the State Attorney
	4. State of Israel

 

 

The Supreme Court sitting as High Court of Justice

Before: Justice Y. Danziger, Justice N. Hendel, Justice G. Karra

 

 

Israeli Supreme Court cases cited:

[1]        HCJ 7893/09 Almagor - Terror Victims Association (R.A.) v. Government of Israel, (Oct. 1, 2008)

[2]        HCJ 6063/08 Shahar v. Government of Israel, (July 8, 2008)

[3]        HCJ 5856/08 Farhangian v. Government of Israel, (July 6, 2008)

[4]        HCJ 914/04 Victims of Arab Terror International v. Prime Minister, (Jan. 29, 2004)

[5]        HCJ 9290/99 MMT Terror Victims HQ (R.A.) v. Government of Israel, IsrSC 54(1) 8 (2000)

[6]        HCJ 9594/09 Legal Forum for the Land of Israel v. Ministerial Committee on National Security Affairs, (April 21, 2010)

[7]        HCJ 548/04 Amana – The Settlement Movement of Gush Emunim v. Commander of the IDF Forces in the Judea and Samaria Region, IsrSC 58(3) 373 (2004)

[8]        HCJ 2717/96 Wafa v. Minister of Defense, IsrSC 50(2) 848 (1996)

[9]        HCJ 358/88 Association for Civil Rights in Israel v. Central District Commander, IsrSC 43 (2) 529 (1989) [https://versa.cardozo.yu.edu/opinions/association-civil-rights-v-central-district-commander]

[10]      HCJ 1539/05 MASHLAT – Law Institute for the Study of Terror and Assistance to Terror Victims v. Prime Minister, (Feb. 17, 2005)

[11]      LCA 2558/16 A. v. Pensions Officer – Ministry of Defense, (Nov. 5, 2017)

[12]      CA 7368/06 Luxury Apartments Ltd. v. Mayor of Yavneh, (June 27, 2011)

[13]      HCJ 1640/95 Ilanot Hakirya (Israel) Ltd. v. Mayor of Holon, IsrSC 49(5) 582 (1996)

[14]      HCJ 6824/07 Manaa v. Israel Tax Authority, IsrSC 64(2) 479 (2010)

[15]      HCJFH 9411/07 Arco Electric Industries Ltd. v. Mayor of Rishon LeZion, (Oct. 19, 2009)

[16]      HCJ 1437/02 Association for Civil Rights in Israel v. Minister of Public Security, IsrSC 58(2) 746 (2004)

[17]      HCJ 5100/94 Public Committee Against Torture in Israel v. State of Israel, IsrSC 53(4) 817 (1999) [https://versa.cardozo.yu.edu/opinions/public-committee-against-torture-v-israel]

[18]      HCJ 5128/94 Federman v. Minister of Police, IsrSC 48(5) 647 (1995)

[19]      HCJ 355/79 Katlan v. Israel Prison Service, IsrSC 34(3) 294 (1980) [https://versa.cardozo.yu.edu/opinions/katlan-v-prison-service]

[20]      CrimA 40/58 Attorney General v. Ziad, IsrSC 12 1358 (1958)

[21]      LCA 993/06 State of Israel v. Dirani, (July 18, 2011)

[22]      HCJ 52/06 Al-Aqsa Company for the Development of Islamic Waqf Property in the Land of Israel Ltd. v. Simon Wiesenthal Center Museum Corp., (Oct. 29, 2008)

[23]      HCJ 3114/02 MK Barake v. Minister of Defense, IsrSC 56(3) 11 (2002) [https://versa.cardozo.yu.edu/opinions/barake-v-minister-defense]

[24]      HCJ 7583/98 Bachrach v. Minister of the Interior, IsrSC 54(5) 832 (2000)

[25]      HCJ 6195/98 Goldstein v. GOC Central Command, IsrSC 53(5) 317 (1999)

[26]      HCJ 3933/92 Barakat v. GOC Central Command, IsrSC 46(5) 1 (1992)

[27]      HCJ 11075/04 Girby v. Minister of Education, Culture and Sport – Chair of the Higher Education Council, (Dec. 5, 2007)

[28]      HCJ 6536/17 Movement for Quality Government in Israel v. Israel Police, (Oct. 8, 2017)

[29]      HCJ 962/07 Liran v. Attorney General, (April 1, 2007)

[30]      HCJ 693/91 Efrat v. Director of the Population Registry in the Ministry of Interior, IsrSC 47(1) 749 (1993)

[31]      HCJ 1075/98 State of Israel v. Oppenheim, IsrSC 54(1) 303 (2000)

[32]      CrimA 2013/92 State of Israel v. Jose, IsrSC 48(2) 818 (1994)

[33]      CA 421/61 State of Israel v. Haz, IsrSC 15 2193 (1961)

[34]      HCJ 7803/06 Abu Arfa v. Minister of Interior, para. 46 (Sept. 13, 2017)

[35]      LCA 3899/04 State of Israel v. Even Zohar, IsrSC 61(1) 301 (2006)

[36]      CA 524/88 "Pri Haemek" – Cooperative Agricultural Society Ltd. v. Sdeh Ya'akov – Workers Cooperative Village of Hapoel Hamizrachi for Agricultural Cooperative Settlement Ltd., IsrSC 45(4) 529 (1991)

[37]      HCJ 6807/94 Abbas v. State of Israel, (Feb. 2, 1995)

[38]      HCJ 4118/07 Hanbali v. State of Israel, (Aug. 30, 2015)

[39]      HCJ 9025/01 Awadallah v. Commander of IDF Forces in Judea and Samaria, (May 11, 2014)

[40]      HCJ 8086/05 Masri v. Commander of IDF Forces in Judea and Samaria, (May 11, 2014)

[41]      HCJ 8027/05 Abu Selim v. Commander of IDF Forces in the West Bank, (July 15, 2012)

[42]      HCJ 5887/17 Jabareen v. Israel Police, (July 25, 2017)

[43]      HCJ 9108/16 Shaludi v. Commander of IDF Forces in the West Bank, (Jan. 29, 2017)

[44]      HCJ 9495/16 Hagug v. Commander of IDF Forces in the Judea and Samaria Area, (Dec. 7, 2016)

[45]      HCJ 2204/16 Alian v. Israel Police, (May 5, 2016)

[46]      HCJ 2882/16 Awisat v. Israel Police, (May 5, 2016)

[47]      HCJ 7947/15 A. v. Israel Defense Forces, (Dec. 16, 2015)

[48]      CrimFH 7048/97 Does v. Minister of Defense, IsrSC 54(1) 721 (2000) [https://versa.cardozo.yu.edu/opinions/does-v-ministry-defense]

[49]      HCJ 769/02 Public Committee Against Torture in Israel v. Government of Israel, (2006) [https://versa.cardozo.yu.edu/opinions/public-committee-against-torture-v-government]

[50]      HCJ 7957/04 Mara'abe v. Prime Minister of Israel, IsrSC 60(2) 477 (2005) [https://versa.cardozo.yu.edu/opinions/mara%E2%80%99abe-v-prime-minister-israel]

[51]      HCJ 2056/04 Beit Sourik Village Council et al. v. Government of Israel, IsrSC 58(5) 807 (2004) [https://versa.cardozo.yu.edu/opinions/beit-sourik-village-council-v-government-israel]

[52]      HCJ 698/80 Qawasmeh v. Minister of Defense, IsrSC 35(1) 617 (1980)

[53]      HCJ 4764/04 Physicians for Human Rights v. Commander of the IDF Forces in Gaza, IsrSC 58(5) 385 (2004) [https://versa.cardozo.yu.edu/opinions/physicians-human-rights-v-idf-commander-gaza]

[54]      HCJ 168/91 Morcus v. Minister of Defense, IsrSC 45(1) 467 (1991)

[55]      Abu Hdeir v. Minister of Defense, (July 4, 2017)

[56]      HCJ 5839/15 Sidar v. Commander of IDF Forces in the West Bank, (2015)

[57]      CFH 5698/11 State of Israel v. Dirani, (Jan. 1, 2015)

[58]      HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister of Israel, (2006) [https://versa.cardozo.yu.edu/opinions/supreme-monitoring-committee-arab-affairs-israel-and-others-v-prime-minister-israel]

[59]      LCrimA 10141/09 Ben Haim v. State of Israel, (March 6, 2012)

[60]      HCJ 337/81 Mitrani v. Minister of Transport, IsrSC 37(3) 337 (1983)

[61]      HCJFH 9411/00 Arco Electrical Industries Ltd. v. Mayor of Rishon Lezion, (Oct. 19, 2009)

[62]      CA 1600/08 Maximedia Outdoor Advertising v. Tel Aviv – Jaffa Municipality, (Aug. 18, 2011)

[63]      HCJ 693/91 Efrat v. Director of Population Registry, IsrSC 47(1) 749 (1993)

[64]      CrimA 6434/15 State of Israel v. Shavir, (July 4, 2017)

[65]      HCJ 6893/05 Levy v. Government of Israel, IsrSC 59(2) 876 (2005)

[66]      CA 8622/07 Rotman v. Ma'atz - National Roads Company of Israel Ltd., (May 14, 2012)

[67]      HCJ 680/88 Schnitzer v. Chief Military Censor, IsrSC 42(4) 617 (1989) [https://versa.cardozo.yu.edu/opinions/schnitzer-v-chief-military-censor]

[68]      HCJ 3037/14 Abu Safa v. Ministry of Interior, (June 7, 2015)

[69]      HCJ 2959/17 Alshuamra v. State of Israel, (Nov. 20, 2017)

[70]      CA 2281/06 Even Zohar v. State of Israel, (April 28, 2010)

[71]      HCJ 5290/14 Qawashmeh v. Military Commander, (Aug. 11, 2014)

[72]      HCJ 4597/14 Awawdeh v. Military Commander, (July 1, 2014)

[73]      HCJ 5376/16 Abu Hdeir v. Minister of Defence, (July 4, 2017)

[74]      HCJ 3132/15 Yesh Atid Party v. Prime Minister of Israel, (April 13, 2016) [https://versa.cardozo.yu.edu/opinions/yesh-atid-party-v-prime-minister]

[75]      CA 294/91 Jerusalem Burial Society v. Kestenbaum, IsrSC 46(2) 464 (1992)

[76]      HCJ 52/06 Al-Aqsa Association for the Development of the Assets of the Muslim Waqf in the Land of Israel v. Simon Wiesenthal Center Museum Ltd., (Oct. 29, 2008)

[77]      CA 7918/15 Doe v. Friedman, (Nov. 24, 2015) [https://versa.cardozo.yu.edu/opinions/doe-v-friedman]

[78]      HCJ 6167/09 Avni v. State of Israel, (Nov. 18, 2009)

[79]      CA 1835/11 Avni v. State of Israel, (Nov. 17, 2011)

[80]      HCJFH 3299/93 Wechselbaum v. Minister of Defence, IsrSC 49(2) 195 (1995)

[81]      HCJ 794/98 Obeid v. Minister of Defence, IsrSC 58(5) 769 (2001)

[82]      HCJ 6063/08 Shachar v. Government of Israel, (July 8, 2008)

[83]      HCJ 10203/03 Hamifkad Haleumi v. Attorney General, (Aug. 20, 2008) [https://versa.cardozo.yu.edu/opinions/hamifkad-haleumi-v-attorney-general]

[84]      HCJ 4491/13 Academic Center for Law and Business v. State of Israel, (July 2, 2014)

[85]      HCJ 1125/16 Mari v. Commander of Military Forces in the West Bank, (March 31, 2016)

[86]      HCJ 7040/15 Hamed v. Military Commander in the West Bank, (Nov. 12, 2015)

[87]      HCJ 794/17 Ziada v. Commander of the IDF Forces in the West Bank, (Oct. 31, 2017)

[88]      HCJ 7523/11 Almagor Terror Victims Association v. Prime Minister, (Oct. 17, 2011)

[89]      HCJ 9446/09 Karman v. Prime Minister of Israel, (Dec. 1, 2009)

 

Decisions of the European Court of Human Rights cited:

[90]      Sabanchiyeva v. Russia Judgment ECHR 38450/05 (6/6/2013)

[91]      Maskhadova v Russia Judgment ECHR 18071/05 (6/6/2013)

[92]      Pretty v. The United Kingdom ECHR 2346/02 (2002)

[93]      Pannulullo v. France ECHR 37794/97 (2001)

[94]      Girard v. France ECHR 22590/04 (2011)

[95]      Dodsbo v. Sweden ECHR 61564/00 (2006); Hadri-Vionnet V. Switzerland ECHR 55525/00 (2008)

[96]      Hadri-Vionnet v. Switzerland ECHR 55525/00 (2008)

 

 

 

 

JUDGMENT

 

Justice Y. Danziger:

The question before us is whether reg. 133(3) of the Defence (Emergency) Regulations, 1945 (hereinafter: the Defence Regulations) authorizes the Military Commander to order the temporary burial of terrorists in order to hold their corpses for the purpose of negotiations.

Background of the Petitions

1.         At the end of 2016, the State of Israel decided to update its policy on returning the corpses of terrorists to their families. The decision was made by the Government's Ministerial Committee on National Security Affairs (the State Security Cabinet), and recorded in its resolution:  "A Uniform Policy on Handling the Corpses of Terrorists" (B/171) (unclassified version) (January 1, 2017) (hereinafter: the Cabinet Decision). The Cabinet Decision was the first instance where a clear policy was enunciated on the issue of holding terrorists' corpses by the State for negotiation purposes. This policy determines that, as a general rule, terrorists' corpses are to be returned to their families under restricting conditions that would ensure that public order is maintained. However, two conditions to this rule were established, under which the corpses of terrorists would not be returned to the families, but be kept by the State of Israel in a temporary burial. The first exception was terrorists belonging to Hamas. The second concerned the bodies of terrorists who had carried out a terrorist act classed as "particularly exceptional". The State Security Cabinet thought it justified to hold on to these corpses specifically, as they might prove to have "special symbolic context", and keeping them might help the State of Israel reach an agreement on the exchange of corpses and prisoners held by enemies. The Cabinet's Decision was established as a general policy, while the actual implementation of the policy was delegated to the Military Commander in accordance with the authority granted to him by law, under reg. 133(3) of the Defence Regulations, to order the place and time for burying the dead.

 

2.         The Cabinet Decision was not made in a vacuum, but must be understood in context and in terms of its timing. Starting in early 2015, Israel faced a wave of terrorist attacks dubbed the "Intifada of the Individuals". This reality led the political echelon and the security establishment in Israel to make various decisions and, inter alia, also reconsider the policy on holding terrorists' corpses for negotiation purposes. Accordingly, the Cabinet undertook an administrative procedure, wherein it was presented with various professional opinions and assessments by political and security entities involved in contacts with enemies, including the Coordinator of POWs and MIAs in the Prime Minister's Office, the Israel Security Agency, the National Security Council, and the Israel Defence Forces. The senior lawyers at the Ministry of Justice also pondered the issue in a number of meetings. The 2004 position of then Attorney General M. Mazuz was also presented to the decision makers. According to the State, the position of Attorney General Mazuz was that terrorists' bodies should not be held based on an indefinite need to keep "bargaining chips" for some future negotiation, but that the possibility should not be excluded given special reasons for holding the bodies, including a concrete deal with an enemy for an exchange of corpses (hereinafter: the Attorney General's 2004 Decision).

 

3.         Since the Cabinet Decision was taken, the State of Israel has held a few dozen terrorist corpses in its custody. These were held by virtue of orders or decisions issued by the Military Commanders or police commanders. The large majority of corpses—more than 40—were returned to the terrorists' families in keeping with the rule laid down in the Cabinet's Decision. On the other hand, the minority of corpses, which the State claims fall under the exceptions defined in the Cabinet's Decision, were held by the State. At this point in time, nine terrorist corpses are held by the State of Israel. Seven were buried temporarily under orders issued by the Military Commander. Two have yet to be buried, after legal proceedings in their matter resulted in the issuance of interim orders preventing their burial. The Petitioners are family members of six of the terrorists whose corpses are currently held by the State of Israel: Fadi Ahmad Hamdan Qunbar, who carried out a terrorist attack at the Armon HaNatziv Promenade on January 8, 2017, murdering IDF soldiers Shira Tzur, Yael Yekutiel, Shir Hajaj and Erez Orbach of blessed memory, and injuring 18 more (HCJ 6524/17(; Muhammad Tra'ayra, who carried out a terrorist attack on June 30, 2016 in Kiryat Arba, murdering the girl Hallel Yaffa Ariel of blessed memory (HCJ 8503/16); Muhammad al-Faqiah, who participated in a terrorist attack on July 1, 2016, in which Rabbi Michael Mark of blessed memory was murdered and members of his family injured (HCJ 8503/16); Masbah Abu Sabih, who carried out a shooting attack on October 9, 2016, murdering Mrs. Levana Malihi and Police Sergeant First Class Yossef Kirma of blessed memory and injuring others (HCJ 285/17); Abd al-Hamid Abu Srur, who carried out a terrorist attack in a Jerusalem bus on April 18, 2016, injuring tens of people (HCJ 4466/16); and Rami al-Ortani, involved in an attempted terror attack  on July 31, 2016 (HCJ 8503/16).

 

            The State of Israel argues that holding these terrorist corpses might help reach a concrete deal for the exchange of corpses and prisoners with Hamas, which holds the corpses of IDF soldiers Lieutenant Hadar Goldin of blessed memory and Staff Sergeant Oron Shaul of blessed memory, and holds Israeli civilians Avera Mengistu and Hisham a-Sayed.

 

            4.         To complete the factual picture, we would note that the State of Israel has transacted past deals with terrorist organizations for the exchange of prisoners and missing persons. A substantial part of the deals involved returning bodies of terrorists affiliated with the organizations in question as part of the "consideration" that the State of Israel "paid". An unclassified affidavit submitted by Head of the POW and MIA Department of the IDF Intelligence Directorate stated that in 1991, 1996, 1998, 2004, 2007 and 2008, the State of Israel concluded deals for the exchange of prisoners and missing persons with enemy organizations, in the context of which it handed over 405 bodies of dead terrorists, along with living detainees and prisoners. Within the framework of these deals, the State of Israel repatriated, among others, IDF fallen soldiers Samir Asad, Yossef Fink, Rahamim Alsheikh, Itamar Ilya, Benny Abraham, Omar Suwad, Adi Avitan, Gabriel Dawit, Ehud Goldwasser and Eldad Regev. These data only relate to deals transacted by the State of Israel with non-state terrorist organizations, not to deals concluded with enemy states at the end of Israel's wars and military campaigns.

 

The Parties' Arguments and the Proceedings

 

5.         The main argument in the petitions is that the State of Israel has no authority to hold the terrorists’ corpses. The Petitioners point to the absence of any arrangement under Israeli or international law authorizing the Military Commander to hold terrorists’ corpses for purposes of negotiation by way of temporary burial or any other way. Beside this key point, the Petitioners further argue that to hold terrorists’ corpses for negotiation purposes is a practice that disproportionately violates the dignity of the dead and that of the families seeking to bring them to burial, and one that constitutes collective punishment against the terrorists' families for no fault of their own.

 

6.         According to the State, the Military Commander does have authority to order the temporary burial of terrorists to be held for negotiation purposes. As the State sees it, reg. 133(3) of the Defence Regulations authorizes the Military Commander to order the place where a person’s body is to be buried. This is also the basis for his authority to order the temporary burial of terrorists who were involved in terrorist attacks, for negotiation purposes. According to its position, this source of authority constitutes explicit, primary legislation in Israel's domestic law that suffices to allow the Military Commander to act. According to the State, this source of authority is also consistent with international law. The State adds that terrorists' corpses are being held for a proper purpose and proportionately, considering that this practice is meant to help bring back Israeli captives and missing persons.

 

7.         The proceedings were conducted in a number of stages. In brief, we held several hearings. The petitions were initially heard separately, before different panels, and were later joined into a single proceeding. At a certain point, interim orders were issued with respect to the two yet-unburied terrorists, as well as orders nisi in all the petitions. The State was given an opportunity to present its position in two separate response affidavits. In addition, the State submitted a number of updates and answers to questions addressed to it by the Court. By the end of the judicial proceedings, the scope of dispute was clarified, and the questions requiring decision, which I will discuss below, were defined.

 

Discussion and Decision

 

8.         As noted above, the central question to be decided in the petitions is whether reg. 133(3) of the Defence Regulations authorizes the Military Commander to order temporary burial of terrorist corpses with a view to hold them for negotiation purposes.

 

Preliminary note: On the relationship between the Cabinet Decision and the authority of the Military Commander, and on the requirement for a specific source of authority for the Military Commander's action

 

9.         As noted, the decision by State Security Cabinet was established as a general policy in the present matter, whereas its execution and implementation were delegated to the Military Commander under the authority granted to him, as argued, in reg. 133(3) of the Defence Regulations. This legal situation deserves discussion and a preliminary clarification.

 

10.       The Ministerial Committee on National Security Affairs (the State Security Cabinet), as we know, is responsible for shaping the government's policy on matters pertaining to the country's security and foreign relations. Its members include, among others, the Prime Minister, Minister of Defence, Minister of Justice, Foreign Minister, Minister of Public Security and Minister of Finance. The principal legal norms that regulate the Committee's activity are found in sec. 31(e) of Basic Law: The Government, in sec. 6 of the Government Law, 5761-2001, and in the Government Work Regulations. The areas covered by the Committee are decided by dedicated government decision. Currently, Decision 41 of the 34^th Government, "Ministerial Committee on National Security Affairs (The State Security Cabinet)" (May 31, 2015) states that the Committee may deal with a number of areas, including the State of Israel's security policy and foreign relations. Cabinet decisions have the same binding validity as government decisions, namely: they are decisions by the executive branch, not provisions that have normative status like a law enacted by the legislature. With that said, it should be clarified that decisions made by the Cabinet lie at the heart of the executive branch's prerogative, and the degree of judicial intervention therein is accordingly highly restrained and limited for the most part (see: HCJ 7893/09 Almagor - Terror Victims Association (R.A.) v. Government of Israel [1],  para. 3 ; HCJ 6063/08 Shahar v. Government of Israel [2], para. 4; HCJ 5856/08 Farhangian v. Government of Israel [3], para. 5; HCJ 914/04 Victims of Arab Terror International v. Prime Minister [4], para. 2; HCJ 9290/99 MMT Terror Victims HQ (R.A.) v. Government of Israel [5], 12).

 

11.       Policy decisions reached by the government via the State-Security Cabinet direct and obligate the branches of government. One such branch is the Israeli Military Government and its commanders. The military echelon and its commanders often implement orders in line with the policy laid down by the political echelon, serving as the long arm of the government in these cases. There is nothing wrong with that, as long as the actions of the military echelon and its commanders are legal per se. And note that the Military Commander, in exercising governmental powers, is required to implement the political echelon's policy, but in doing so remains subject to and committed to the principles of Israeli administrative law. Within this framework, he must act in accordance with the rules of administrative authority. As previously held: "The Military Commander is authorized, and even obligated, to act in the area under his command in a way consistent with the policy set by the government, provided that, as part of his discretion, he acts in accordance with the authority granted him under any law" (HCJ 9594/09 Legal Forum for the Land of Israel v. Ministerial Committee on National Security Affairs [6], para. 15; and also see: HCJ 548/04 Amana – The Settlement Movement of Gush Emunim v. Commander of the IDF Forces in the Judea and Samaria Region [7],  379; HCJ 2717/96 Wafa v. Minister of Defence [8], 855; HCJ 358/88 Association for Civil Rights in Israel v. Central District Commander [9], 537-538).

 

12.       We should make it clear that while the government often outlines the policy for the activity of the public administration, its decision does not supplant the need for the executive echelons to have sources of authority. In reality, the government often determines a general policy, which is then supposed to be carried out by administrative organs based on specific authority granted to them by law. The government formulates policy in some area—such as housing, security, support, pensions, education, etc.—but clearly not just any administrative agency acting under the government can undertake its implementation, but only those bodies vested with the authority to do so. Accordingly, it has been held, for example, that the government may decide that, as a matter of policy, it wants to release Palestinian prisoners within the framework of negotiations with enemies. Yet, it has been held that this policy does not supplant the need that action taken by administrative organs be in accordance with authority granted to them by law. It has been held that while the political echelon's authority still stands, "the authority to decide the release of prisoners before serving their full sentence is not the government's to make", but lies instead with others holding executive powers, among them the President of Israel and the Military Commanders. It was thus made clear that in order to order the release of Palestinian prisoners, it is not enough for government to set a policy, but that a given authority granted to the executive echelon must be exercised (HCJ 1539/05 MASHLAT – Law Institute for the Study of Terror and Assistance to Terror Victims v. Prime Minister [10], [para. 3).

 

13.       The requirement for a specific source of authority for the action of the Military Commander derives from rule of law and the principle of administrative legality. Any administrative organ must operate within the confines of the authority granted it by law. This principle is the cornerstone of administrative law. It makes it incumbent upon administrative agencies to act according to the law, thus limiting the power of government and ensuring individual liberties. The administrative obligation that applies to the Military Commander to act by authority applies regardless of the nature and wisdom of his decision. Even "good" administrative action or action arising out of an "administrative need" can be found to be illegal in the absence of a source of authority (LCA 2558/16 A. v. Pensions Officer – Ministry of Defence [11], para. 37; CA 7368/06 Luxury Apartments Ltd. v. Mayor of Yavneh [12], para. 33; HCJ 1640/95 Ilanot Hakirya (Israel) Ltd. v. Mayor of Holon [13], 587; Dahpne Barak-Erez, Administrative Law, vol. I, 97-98 (2010) (Hebrew); Baruch Bracha, Administrative Law, vol. I, 35 (1987) (Hebrew); Yitzhak Zamir, Administrative Authority, vol. I, 74-76 (2^nd ed., 2010) (Hebrew) (hereinafter: Zamir, Administrative Authority).

 

14.       When the administrative act infringes human rights, not only is the administrative entity required to point to a source of authority for its action, but the enabling provision must meet constitutional requirements. Inter alia, it must be anchored in primary legislation, in a special provision of law intended to permit the violation of the fundamental right. In addition, it must be clear, specific and explicit. This is what this Court has long held, and this principle was eventually even anchored in sec. 8 of Basic Law: Human Dignity and Liberty, which provides that a violation of basic rights protected under the law shall only be permitted "by virtue of express authorization in such law" (see: HCJ 6824/07 Manaa v Israel Tax Authority [14]; HCJFH 9411/07 Arco Electric Industries Ltd. v. Mayor of Rishon LeZion [15]; HCJ 1437/02 Association for Civil Rights in Israel v. Minister of Public Security [16], 762; HCJ 5100/94 Public Committee Against Torture in Israel v. State of Israel [17], 831 (hereinafter: the Public Committee case); HCJ 5128/94 Federman v. Minister of Police ]18], 653;  HCJ 355/79 Katlan v. Israel Prison Service [19]; CrimA 40/58 Attorney General v. Ziad [20]).

 

15.       In our case, the actions of the Military Commander involve a violation of human rights. This Court has often held that the right to human dignity also gives rise to the rights of the dead and their family members to bring the deceased to a proper, dignified burial, which will allow them to commune and commemorate. These rights have been recognized in the case law regardless of the identity of the deceased, even when they were terrorists or enemy soldiers. The background for this is the general convention that human rights are granted to all people as such, even if they fall under the definition of "enemy". For our purposes, it is indeed an accepted convention that even the most abhorrent murderer has the right to burial, and his family has a right to bury him. This convention may raise difficult emotional responses, especially in those who have suffered from the deceased’s actions, but it is necessary in a regime that respects human rights, as often explained in the case law (see: LCA 993/06 State of Israel v Dirani [21], para. 54; HCJ 52/06 Al-Aqsa Company for the Development of Islamic Waqf Property in the Land of Israel Ltd. v. Simon Wiesenthal Center Museum Corp. [22], paras. 190-194; HCJ 3114/02 MK Barake v. Minister of Defence [23], (hereinafter: the Barake case); HCJ 7583/98 Bachrach v. Minister of the Interior [24], 841-842; HCJ 6195/98 Goldstein v. GOC Central Command [25], 330 (1999); HCJ 3933/92 Barakat v. GOC Central Command [26], 6 (hereinafter: the Barakat case); Aharon Barak, Human Dignity: The Constitutional Right and Its Daughter Rights, vol. I, 381-383 (2014) (Hebrew) [published in English as Human Dignity: The Constitutional Value and the Constitutional Right (2015)].

 

16.       To complete the picture, we should note that the State did not dispute the necessity that the action by the Military Commander in this case be based on some specific authority granted by explicit, primary legislation. The State agreed with this, and did not raise any alternative argument. In particular, the State did not argue that the Military Commander's action in our case could be based on residual or inherent powers of the government. Note, in this context, that it is possible to imagine situations in which the government might lay down some general policy, where it would hold some of the authority involved in its execution as inherent power. In these situations, there may be scenarios where the policy would be implemented by an administrative organ, as the long arm of government, even in the absence of a specific source of authority in the law for its action (see sec.  3 of Basic Law: The Government; HCJ 11075/04 Girby v. Minister of Education, Culture and Sport – Chair of the Higher Education Council, [27], para. 15; "The Authority to Enter a Contractual Undertaking on Behalf of the State", Attorney General’s Guidelines 6.2000 (May 15, 2003); Zamir, Administrative Authority, 423). However, these are concrete, well-defined situations, whereas in most situations—especially those involving the violation of human rights, as in our case—government policy cannot be executed based on residual powers granted to the government. As noted, the State never even raised such an argument in this case.

17.       To summarize the point: The decision by the State Security Cabinet was established as a general policy, but its execution and implementation were delegated to the Military Commander under the authority granted to him by law. In this legal state of affairs, we must examine whether the law does have a provision authorizing the Military Commander to implement and execute the Cabinet's policy. Furthermore, if an enabling provision of law exists, we would then also have to examine whether it is anchored in explicit, specific primary legislation, seeing as the actions that the Military Commander seeks to carry out violate human rights,.

 

Does Regulation 133(3) of the Defence Regulations constitute an explicit, specific primary source of legislation that authorizes the Military Commander to order the temporary burial of terrorist bodies for negotiation purposes?

 

18.       Regulation 133(3) of the Defence Regulations states as follows:

 

Inquests, etc.

133.    (1)  (Cancelled) (2)  Notwithstanding anything contained in any law, where a member of the Government's forces has died in Israel in any manner or in any circumstances whatsoever, it shall be lawful for an Army Medical Officer to issue a certificate of death of such person, and such certificate, upon being countersigned on behalf of the General Officer Commanding, shall be full and sufficient authority for the burial of the body of such person. (3)  Notwithstanding anything contained in any law, it shall be lawful for a Military Commander to order that the dead body of any person shall be buried in such place as the Military Commander may direct. The Military Commander may by such order direct by whom and at what hour the said body shall be buried. The said order shall be full and sufficient authority for the burial of the said body, and any person who contravenes or obstructs such order shall be guilty of an offence against these Regulations.

 

19.       Answering the question whether reg. 133(3) of the Defence Regulations authorizes the Military Commander to make a decision on the temporary burial of terrorist bodies for negotiation purposes requires some interpretation. While the starting point for the interpretation is the regulation's language, it is not, as we know, the end point, given that among the existing linguistic possibilities, the interpreter must choose the one that best fulfills the purpose of the law. The purpose of legislation is the goals, values, policy, social functions and interests that the legislation is meant to fulfil. The purpose of legislation is a normative concept, which consists of the subjective and objective purposes of the legislation. The subjective purpose is the specific goal that the legislature sought to achieve through the law ("the legislative intent"). The objective purpose is the one that the legislation was meant to realize in our legal system as the system of a democratic society. Both purposes can be deduced from the language of the law, its legislative history and other external sources (HCJ 6536/17 Movement for Quality Government in Israel v. Israel Police [28], para. 30; HCJ 962/07 Liran v. Attorney General [29], paras. 33-34; HCJ 693/91 Efrat v. Director of the Population Registry in the Ministry of Interior {30], 764 (1993); Aharon Barak, Interpretation in Law: Interpreting Legislation (1992) Hebrew); Aharon Barak, Purposive Interpretation in Law (2003) Hebrew) (hereinafter: Barak, Purposive Interpretation) [English edition 2011]).

20.       Looking at the language of reg. 133(3) of the Defence Regulations, one is led to conclude that it cannot be considered an "explicit" source of authority for the Military Commander's action. The regulation's language refers to a situation where the security forces are in possession of a corpse. In this situation, the regulation authorizes the Military Commander to issue a burial order, and order who will bury the corpse, and at what place and hour it will be buried. While the regulation grants the Military Commander authority to issue such orders with respect to the body "of any person", it does not specify the circumstances under which  the authority is to be exercised. It does not make explicit whether the Military Commander's authority to make decisions concerning the burial of dead persons applies only in "times of emergency", or whether the authority is meant to exist in other contexts as well. It does not make clear whether the Military Commander's authority to make decisions on burial only exists when a dead person cannot be brought to burial in the acceptable, ordinary way, or in other circumstances as well. Furthermore, and this is the crux of our issue: The language of the regulation does not address the question of whether the authority granted to the Military Commander to order a burial also applies to temporary burial for negotiation purposes, which in no way constitutes burial in the usual sense, but a holding of the body, a holding by burial, where there can be no doubt that its circumstances and purpose differ from a classic, normal act of burial. In this context, the language of the regulation is vague and cannot be considered an explicit source of authority.

21.       Examining the purpose of reg. 133(3) of the Defence Regulations leads to the conclusion that the regulation was never meant to authorize the Military Commander to order the temporary burial of terrorist bodies for negotiation purposes. As we will explain, when one traces the legislative history of the regulation, examines its internal and external logic, applies the presumptions of purposive interpretation, and looks at Israeli law and international law as they relate to issues similar to the holding of corpses, the result is a sharp, clear picture: The Mandatory legislator, followed by the Israeli one, never envisaged a situation relating to the temporary holding of terrorist bodies for negotiation purposes. They never imagined that the Military Commander would exercise his authority in such circumstances. And in any case, reg. 133(3) does not include the balances required between the conflicting interests and rights in this area. The regulation also makes no reference to necessary information related to exercising the authority in the unique situation of the temporary burial of corpses for negotiation purposes, among them: circumstances that would justify the temporary burial of a body; how long a body may be held in temporary burial; the authority and timing for disinterment after a deal is struck; the requirements for documentation and registration of the body and the burial; obligations to transmit information regarding the body, etc. The regulation is deafeningly silent on all the above, and cannot be taken to imply any intent by the legislator to grant the Military Commander authority and power to address them or make decisions in that regard.

22.       On examining the legislative history of reg. 133(3) of the Defence Regulations, one finds that it is, in fact, a later incarnation of reg. 19C of the Emergency Regulations, 1936 (hereinafter: the 1936 Emergency Regulations). Chronologically following the regulation's evolving formulation suggests that the regulation had seen a number of transformations and changes. In its historic formulation, as it appeared in the 1936 Emergency Regulations, the regulation mentioned a burial authority under very specific circumstances, where a person was hanged in one of the two central prisons in the cities of Acre and Jerusalem. With regard to these circumstances, the regulation stated, as published in the Hebrew Official Gazette, stated: "Notwithstanding anything stated in any Ordinance or law, the District Commissioner may order that the body of any person who has been hanged at the Central Prison in Acre or the Central Prison in Jerusalem shall be buried in the cemetery of the community to which such person belongs…", and in its English-language formulation, as published in the official gazette in the English language, the Regulation similarly stated that: "Notwithstanding anything contained in any Ordinance or law it shall be lawful for the District Commissioner to order that the body of any person who has been executed at the Central Prison, Acre, or the Central Prison, Jerusalem, shall be buried in such cemetery of the community to which such person belongs…". The title of the Regulation at the time was "Death certificates, inquests and burials".

            Then, in 1945, reg. 19C was copied from the 1936 Emergency Regulations into reg. 133(3) of the Defence (Emergency) Regulations, 1945 (hereinafter: the 1945 Emergency Regulations). The language of the regulation remained the same, except for minor changes, but its location was moved to the part devoted to "Miscellaneous Provisions". In addition, the title of the Regulation was shortened and re-defined as "Inquests, etc." A few years later, in January 1948, the Regulation underwent its last revision, fixing it in its current version (hereinafter: the 1948 Defence Emergency Regulations). As part of this revision, the High Commissioner announced his decision to change the regulation such that the District Commissioner would be replaced by the Military Commander as the administrative organ vested with the authority, and such that his scope of authority would be extended to allow him to order, inter alia, the burial of any person's dead body—i.e. not just a "person who has been executed at the… prison"; and anywhere, i.e. not just in the "cemetery of the community". The new, updated version of reg. 133(3) of the Defence Regulations in Hebrew is the one quoted above. The updated regulation was officially published by the High Commissioner in English, as follows: "Notwithstanding anything contained in any law it shall be lawful for the Military Commander to order that the dead body of any person shall be buried in such place as the Military Commander may direct. The Military Commander may by such order direct by whom and at what hour the said body shall be buried. The said order shall be full and sufficient authority for the burial of the said body, and any person who contravenes or obstructs such order shall be guilty of an offence against these Regulations".

            (For the official publications of the regulation's text, both in Hebrew and in English, from its appearance in the 1936 Emergency Regulations, through its appearance in the 1945 Defence Regulations, to its appearance in the 1948 Emergency Regulations, see: Supplement No. 2 to the Palestine Gazette, issues No. 584, 753 and 825 (of 19 April 1936, 27 January 1938 and 13 October 1938 respectively) (Palestine (Defence) Order In Council, 1931, 1937) (Regulations made by the High Commissioner under Articles IV, 6 and 10); Supplement No. 2 to the Palestine Gazette issue No. 1442 (of 27 September 1945) (The Defence (Emergency) Regulations, 1945); Supplement No. 2 to the Palestine Gazette, issue no. 1643 (of 22 January 1948) (Palestine (Defence) Order In Council, 1937) (Regulations made by the High Commissioner under Article 6) (Defence (Emergency) Regulations, 1948). We would note that the fact that the text of the regulation was also published from the outset in the Hebrew language in the official Mandatory publications makes interpretation easier, as it obviates the need to trace translation processes; compare: HCJ 1075/98 State of Israel v. Oppenheim [31], 326; CrimA 2013/92 State of Israel v. Jose [32], 825-826; CA 421/61 State of Israel v. Haz [33], 2206).

            Examining the legislative history of reg. 133(3) of the Defence Regulations reveals that never once in its process of enactment was the possibility contemplated that the Military Commander would be able to order the temporary burial of a corpse for negotiation purposes. Rather, the existing data are more consistent with the conclusion that the historical purpose of the regulation was to handle burials primarily in situations where objective difficulties arose that made it hard to return the body of the dead to the relatives. And note: at the outset, the regulation authorized the District Commissioner to order the burial of the bodies of prisoners of the Mandatory regime who were executed at the central prisons in Jerusalem and Acre. Naturally, these prison executions made it necessary to regulate the handling of corpses. Indeed, the Mandatory authorities followed clear rules in this regard: The rule was to hand over the body of those executed to their relatives to be buried normally as per the dead person's customs. At times, however, an objective obstacle arose to transferring the dead person's body to his relatives. Such was the case, for example, when the relatives did not claim the body, whether because they had no knowledge of the ill fate that had befallen him (for example, because he was an illegal immigrant), or due to their fear of turning to the Mandatory authorities. In these cases, the Mandatory legislator sought to guarantee that the dead person would be brought to burial under proper, dignified arrangements, as consistent as possible with his customs and practices (reg. 19C of the 1936 Emergency Regulations instructed that the deceased should be buried "in such cemetery of the community"). For this purpose, the Mandatory administrative organs were granted various powers. Thus, reg. 302 of the Prison Regulations, 1925, stated that the Prisons Commissioner would be allowed to order how a body should be handled. Similarly, reg. 19C of the 1936 Emergency Regulations, later copied into the 1945 and 1948 Emergency Regulations, authorized the District Commissioner to order the burial of the corpse. This is how these things are described by Dr. Joshua Caspi in his comprehensive article Prisons in Palestine during the Mandate Period, 32 Cathedra  Quarterly - A Journal for the History of Eretz-Israel, (Yad Ben Zvi), 171-172 (1984) (Hebrew):

The hanging was usually carried out in secret, at night or in the early morning, when the other prisoners were sleeping, by 08:00 AM at the latest (reg. 298). Following the hanging, the physician would check whether the convict had already expired. The body was left hanging for one hour and then handed over to relatives for burial. If the relatives did not want the body, it was buried by the authorities (Regulation 302) (Emphasis added – Y.D.).

As noted, the regulation's historic context is more in keeping with the conclusion that it was primarily meant to manage exceptional situations where the corpse could not be transferred to the person's relatives. This conclusion also appears logical in relation to the regulation's later versions. While the wording of the regulation did undergo changes over the years, it can be reasonably assumed that the Mandatory legislator did not seek to change the rule whereby the body of the deceased person should be handed over to its relatives, if possible. This also holds true for the wording of the 1948 Regulation. While the wording of the regulation was changed at the time, and the holder of the authority was changed, it stands to reason that, at this point too, the regulation mainly targeted situations where the security forces had a corpse that, for some reason or another, could not be delivered to the dead person's relatives, whether because it was not possible to identify the dead individual, because no one came forward to claim the body, or because it was held by the security forces during confrontations. In these situations, where it was not clear where and how the body should be buried, the Military Commander was granted authority to make decisions, based on the understanding that he was the one in charge "on the ground" who could ensure a proper, dignified burial. It is hard to accommodate an inverse conclusion whereby the purpose of the authority was to give the Military Commander "general" power to order the burial of dead individuals across a large variety of circumstances, even when their corpses could be handed over to their families. In any cast, and this is the crux of the matter, even if we assume that the historic purpose of the regulation was to grant the Military Commander "general" power over burials, it is hard to adopt a conclusion that the intention was to also allow him to issue orders in a situation involving the temporary burial of terrorist bodies for negotiation purposes.

23.       The location and context of reg. 133(3) of the Defence Regulations within the fabric of the legislation likewise support the conclusion that the power was not meant to authorize the Military Commander to order the temporary burial of terrorist bodies in order to hold them for negotiation purposes. Regulation 133(3) appears under part XIV of the Defence Regulations, devoted to "Miscellaneous Provisions", as one of several secondary regulations. The burial powers granted therein do not constitute a unique, specific and complete legal arrangement dedicated to the holding of enemy bodies for negotiation purposes. One might have expected that a legal system desirous of adopting a practice of holding terrorist bodies for some reason or another would do so by means of a unique, concrete legislative arrangement wholly devoted to regulating the matter. While reg. 133(3) of the Defence Regulations grants the Military Commander – at most – broad "general" powers from which one might derive action, even the State does not dispute that it does not represent a dedicated legal arrangement devoted to regulating the temporary burial of terrorist bodies. The fact that reg. 133(3) is at most a "general" arrangement under "Miscellaneous Provisions" undermines the State's claim that it should be seen as an "explicit" legislative arrangement. Parenthetically, it should be noted—and we shall return to this later—that there are, in fact, few countries in the world whose legal code includes a dedicated legislative arrangement to allow the holding of terrorist bodies, and even those countries that have decided to include such an arrangement in their legal code have done so by way of a dedicated, specific legislative arrangement, radically different from the one in the Defence Regulations.

24.       Implementing the accepted interpretive presumptions as to purpose in the Israeli legal system also reinforces the conclusion that reg. 133(3) of the Defence Regulations cannot be construed to grant the Military Commander broad authority to order the temporary burial of terrorist bodies for negotiation purposes. Inasmuch as the provisions of the arrangement violate human rights, the interpretative rule that a legal provision should be interpreted narrowly and strictly applies. Moreover, there is the purposive presumption that the goal of a legal provision is to inflict the least harm to human rights. In our case, as noted, the language of the regulation does not establish explicit authority to order the temporary burial of terrorists for negotiation purposes. Under these circumstances, the regular rules of interpretation relating to the protection of human rights obtain (for the rules and interpretative presumptions relating to the protection of human rights, see: Barak, Purposive Interpretation, 224; HCJ 7803/06 Abu Arfa v. Minister of Interior [34], para. 46;  LCA 3899/04 State of Israel v. Even Zohar [35], 317; CA 524/88 "Pri Haemek". v. Sdeh Ya'akov [36], 561). Another interpretative presumption that might apply in our case has to do with the compatibility of domestic law with international law (see Barak, ibid). As I shall explain in detail, the present case raises serious questions about the relationship between domestic Israeli law and the international humanitarian law treating of armed conflicts, and international human rights law.

25.       An examination of the case law of this Court in similar contexts also reinforces the conclusion that reg. 133(3) of the Defence Regulations cannot be interpreted as the State would have it. We would first note the absence of any prior ruling directly concerned with the Military Commander's authority to order the temporary burial of terrorist bodies by virtue of the regulation. While it was previously held that the regulation might constitute a source of authority for his decision to order a funeral to take place at a specific hour (the Barakat case [26]), and the Court even sanctioned a decision not to return to Hamas the body of a terrorist until information about the burial place of a fallen IDF soldier was provided (HCJ 6807/94 Abbas v. State of Israel [37]). However, the aforementioned rulings did not take up the question of the Military Commander's authority to order the temporary burial of bodies for negotiation purposes. It should be further noted that the State had previously presented its position on reg. 133(3) of the Defence Regulations, but the Court was not required to express its opinion since the petitions became moot (See: HCJ 4118/07 Hanbali v. State of Israel [38]; HCJ 9025/01 Awadallah v. Commander of IDF Forces in Judea and Samaria [39]); HCJ 8086/05 Masri v. Commander of IDF Forces in Judea and Samaria [40]; HCJ 8027/05 Abu Selim v. Commander of IDF Forces in the West Bank [41]). In any case, despite the absence of rulings directly pertaining to the question of the Military Commander's authority to order the temporary burial of terrorist bodies by virtue of reg. 133(3) of the Defence Regulations, important debates held in similar contexts can be found in the case law.

            An examination of Israeli case law shows that most petitions similar to this one addressed situations where terrorist bodies were held in order to maintain public order. The State's position in those situations was not based on the Cabinet Decision or on reg. 133(3) of the Defence Regulations. The State argued that returning terrorist bodies to their families might lead to riots and to mass funerals that would lead to overt glorification of and identification with the acts of the terrorists, and become a locus of incitement (for recent examples, see: HCJ 5887/17 Jabareen v. Israel Police, [42] (hereinafter: the Jabareen case); HCJ 9108/16 Shaludi v. Commander of IDF Forces in the West Bank [43]; HCJ 9495/16 Hagug v. Commander of IDF Forces in the Judea and Samaria Area [44]; HCJ 2204/16 Alian v. Israel Police [45]; HCJ 2882/16 Awisat v. Israel Police [46]; HCJ 7947/15 A. v. Israel Defence Forces [47]). The situations in which terrorist bodies are held in order to maintain public order raise questions that are distinct from those in our case, and moreover, as noted, the examination mostly concerns other sources of authority. In any case, and this is the main point, the decisions in those situations also emphasized that terrorist bodies could not be held in the absence of a specific source of authority, anchored in explicit primary legislation.

            Of particular importance in this context is the judgment recently rendered in the Jabareen case [42], which stated that the Israel Police was not authorized to hold terrorist bodies as a condition for obtaining their families' consent to the conditions under which the funerals would take place. It was made clear that, for the purpose of holding the corpses, the Israel Police was obligated to point to a specific dedicated source of authority anchored in explicit primary legislation. The Police's position in the proceedings was that secs. 3 and 4A of the Police Ordinance [New Version], 5731-1971 constitute such an explicit source of legislation. The Police explained that sec. 3 of the Ordinance granted it broad authority to engage in the maintaining of public order and the safety of persons”, and that sec. 4 of the Ordinance authorized every police officer “to undertake any action that is necessary” to prevent serious harm to the safety of life and property. As the Police saw it, these general, broad powers were sufficient to allow it to hold on to terrorist bodies. As noted, this position was rejected by the Court for the same reason stated above in regard to reg. 133(3) of the Defence Regulations. It was held that "this position of the Police is inconsistent with the requirement for 'explicit' authorization in all that concerns an action that violates basic rights", since the existing sections in the Police Ordinance are general and were not intended to grant the police specific powers in regard to holding corpses (ibid, para. 9). Consequently, it was held that the Police would return the terrorists' bodies to their families. As noted, despite the difference in circumstances between the Jabareen case and the case before us, the reasoning regarding the authority requirement is identical.

            A similar ruling on the requirement for a source of authority, from which an analogy can be drawn to our case, was rendered in CrimFH 7048/97 Does v. Minister of Defence [48] (hereinafter: the Bargaining Chips case). In that case, the question debated was whether sec. 2(a) of the Emergency Powers (Detention) Law, 5739-1979, constituted a source of authority for holding live detainees as bargaining chips. This Court ruled by majority—per Justices A. Barak, S. Levin, T. Orr, E. Mazza, I. Zamir and D. Dorner, and contrary to the dissenting opinions of Justices M. Cheshin, Y. Kedmi and J. Turkel—that the answer to the question was negative. It was explained that, indeed, the language of the Detention Law gave the Minister of Defence general, broad authority to detain an individual "on grounds of national security or public safety" in a way that might also accommodate a reading that he may arrest detainees as bargaining chips. However, it was held that such a possibility "did not come up for discussion, and was not, in fact, examined, by those dealing with the tasks of legislation" (ibid, 739). In those circumstances, it was held that it was not possible to extend the boundaries of the authority and interpret the provisions of the Detention Law as if they were meant to grant detention powers in such situations as well. It should be noted that the ruling in the Bargaining Chips case was also rendered with the prospect of finalizing deals for swapping prisoners and missing persons floating in the background. Even so, and despite the understandable human difficulty, the ruling was that, in the absence of a dedicated source of authority in explicit primary legislation, live detainees could not be held as bargaining chips. This was aptly summarized by Deputy President S. Levin in his ruling: "It would be naïve and even dangerous to deprive the State of appropriate means for freeing its fighters.  However, the statute has not placed such a tool at its disposal. In my opinion, in order to place it as its disposal,  a different source or grounds for its authority is required in primary legislation for a matter that prima facie has significance of a primary nature. " (ibid, 753).

            It is true that  drawing an analogy from the ruling in the Bargaining Chips case to our case is not simple. There is no denying that holding live detainees—a decision that violates the right to freedom in the narrow, nuclear sense—carries different weight than a decision to hold corpses. We should also bear in mind is that the judgment in the Bargaining Chips case also included a minority opinion that cannot be ignored, according to which nothing prevents deriving specific authority to hold live detainees  from the general authority in the Detention Law, in circumstances where the other side to a conflict also holds prisoners and missing persons. In addition, we have before us various critiques of the judgment published in the professional literature, as well as academic discussions on the subject (see and compare: Emanuel Gross, The Struggle of Democracy against Terrorism: Legal and Moral Aspects, 287-259 (2004) (Hebrew) [published in English as: The Struggle of Democracy against Terrorism: Lessons from the United States, the United Kingdom, and Israel (2004)]; Eitan Barak, Under Cover of Darkness: The Israeli Supreme Court and the Use of Human Lives as “Bargaining Chips", 8 Plilim 77 (1999) (Hebrew) [published in English in 3(3) International Journal of Human Rights (1999)]). Still, and this for me is the crux of the matter, one cannot dispute that the rule laid down in the majority in the further hearing on the Bargaining Chips case also clearly supports the conclusion that actions of the kind in question—like those that the State wishes to carry out in the case before us via the Military Commander—must rest on authority based in explicit primary legislation intended to regulate the delicate, complex situation of holding live detainees, as well as terrorist bodies, for negotiation purposes.

26.       The position of Attorney General M. Mazuz in 2004 also supports the conclusion that it is hard to accommodate an interpretation whereby reg. 133(3) was intended to grant the Military Commander sweeping, practically unrestricted authority to order the temporary burial of terrorist bodies for negotiation purposes. We would recall that the State claimed that the Attorney General's position was that terrorist bodies could not be held based on a theoretical need to keep "bargaining chips" for future negotiations, but that the possibility should not be ruled out if there are special reasons to hold on to the bodies. An examination of the Attorney General's decision shows that  he never addressed the question of the Military Commander's authority under reg. 133(3) of the Defence Regulations, and stated no opinion in that regard. On the other hand, the Attorney General did point out that "it is impossible to defend a general policy" of not returning terrorist bodies to their families (para. 1 of the decision); that "preventing the return of bodies is a measure that cannot be justified by a theoretical need to keep bargaining chips for future negotiations on captives and missing persons" (para. 7); and that: "a policy allowing terrorist bodies to be held in certain cases and no few cases, is inconsistent with the duty to strike a balance between the dignity of the dead and their families and considerations of security and protecting public order and safety in the area" (para. 8). Indeed, the Attorney General's position did not categorically rule out the measure of holding bodies for negotiation purposes in special situations, such as a concrete deal for the exchange of bodies. As previously noted, however, this determination was rendered under the clear assumption that there is authority to hold bodies, and in any case this should be read in light of the other determinations in his decision—which would seem to be the main point—that seek to limit such authority and confine it to specific, concrete circumstances.

27.       Interim summary: The conclusion from the interpretative analysis thus far is that reg. 133(3) of the Defence Regulations does not constitute a specific, explicit, primary source of legislation that authorizes the Military Commander to order the temporary burial of terrorist bodies for negotiation purposes. This conclusion arises, first and foremost, from the language of the regulation, which, as explained, is at best "general" and "broad" in a manner that fails to meet the requirement for explicit legislation. It also follows from the regulation's purpose, as suggested by its historical context, inner and external logic, and its juxtaposition with rulings made in similar contexts. As explained, the Mandatory legislator, followed by the Israeli one, never considered a situation concerning the temporary holding of terrorist bodies for negotiation purposes, and did not seek to create a unique legal arrangement that would grant authority to that effect. In the next part of the judgment, I will further explain that this interpretative conclusion is even reinforced, in my opinion, in light of the provisions of international law and comparative law treating of situations of handling bodies during armed conflict or confrontation.

International Law and Comparative Law

28.       In our case, the State's consistent line of argument was predicated on the assumption that the Military Commander had a source of authority in Israel's domestic law. The State made it clear that it was not predicating its position on international law, although emphasizing that, in its view, there is no prohibition upon holding dead bodies international law. In the previous part of the decision, I examined the provisions of domestic Israeli law and arrived at the conclusion that this examination itself shows that it comprises no source of authority for holding bodies for negotiation and bargaining. However, I think it justified to go further, and also address issues relating to international law, for three reasons: First, even though the State sought to base its actions solely on domestic Israeli Law, it is possible that international law may apply at least to some of the corpses. In this context, suffice it say that some of the terrorists whose bodies are held by the State of Israel are of inhabitants of the Territory[1] "affiliated" or "identified" with Hamas in a manner that may raise questions regarding the applicability of international law. Second, the discussion about international law may play a part in the interpretation of reg. 133(3) of the Defence Regulations, since the purposive interpretive presumption is that the legislature meant to grant the Military Commander powers conforming to the provisions of international law. Third, the discussion of international law is also required as it could contribute to establishing some legal order in similar body-holding situations in the future. We would emphasize that the goal of the discussion is not to make positive assertions concerning the applicability of international law in each of the possible body-holding situations, but only to present a general picture of the subject.

 

29.       The factual situation is that the State of Israel wishes to hold bodies of terrorists who have committed acts of terrorism against its civilians. The web of laws that might apply in this situation is complex. The normative framework might be based exclusively on domestic Israeli Law. Such is the case, for example, when the terrorist is a citizen and resident of Israel, and unaffiliated with any terrorist organization. In other situations, the normative framework might include the provisions of international humanitarian law on armed conflict, as well as complementary provisions from international human rights law. When it comes to armed conflict, the provisions of the law might relate to international armed conflict or non-international armed conflict. In certain circumstances, for example when the terrorist is a resident of the Judea and Samaria area, the laws of belligerent occupation might also apply in parallel. Alongside those, one has to keep in mind that the laws of armed conflict include fine distinctions that might also bear upon the legal situation. Particularly well-known is the distinction between combatants and non-combatants or civilians (for more on the systems of laws that might apply to a body-holding situation, see: Anna Petrig, The War Dead and their Gravesites, 91 Int'l. Rev. of the Red Cross 341-369, 343 (2006) (hereinafter: Petrig); Thomas L. Muinzer, The Law of the Dead: A Critical Review of Burial Law, with a View to its Development, 34 Oxford J. of Legal Stud. 791-818 (2014)).

 

30.       The international humanitarian law applicable to armed conflict comprises various norms on burials and the handling of corpses. The key provisions are anchored in the four Geneva Conventions of 1949, and the two Protocols Additional to the Conventions of 1977. The large majority of the provisions constitute customary international law, which forms part of the binding domestic law of the State of Israel. There is no disputing that the State of Israel is committed to the First, Second and Third Geneva Conventions. On the other hand, its traditional position is that the belligerent occupation laws found in the Fourth Geneva Convention do not apply to the area of Judea and Samaria, even though it respects the humanitarian provisions included therein. In addition, the State of Israel is not party to the Additional Protocols. It has reservations about some of their provisions, but sees itself subject to their customary provisions of law (see HCJ 769/02 Public Committee Against Torture v. Government, [49], paras. 16-23; HCJ 7957/04 Mara'abe v. Prime Minister of Israel [50], 492; HCJ 2056/04 Beit Sourik  v. Government [51],  827; HCJ 698/80 Qawasmeh v. Minister of Defence [52],  (hereinafter: the Qawashmeh case); Orna Ben Naftali & Yuval Shani, International Law Between War and Peace (2006) (Hebrew); Ruth Lapidot, Yuval Shani & Ido Rosenzweig, Israel and the Two Protocols Additional to the Geneva Conventions (Policy Paper 92, Israel Democracy Institute) (2011) (Hebrew); Yoram Dinstein, The Laws of War  (Hebrew)  (1983)).

 

(For the conventions, see: The First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (hereinafter: the First Geneva Convention); The Second Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (hereinafter: the Second Geneva Convention); The Third Geneva Convention relative to the Treatment of Prisoners of War (hereinafter: the Third Geneva Convention); The Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (hereinafter: the Fourth Geneva Convention). For the Protocols, see: Additional Protocol to the Geneva Conventions of 12 August 1949 Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1977 (Hereinafter: the First Protocol); Additional Protocol to the Geneva Conventions of 12 August 1949 Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1977 (Hereinafter: the Second Protocol)).

 

31.       Most of the norms relating to the handling of dead bodies in international humanitarian law apply to situations of international armed conflict. The Geneva Conventions impose various obligations upon belligerent parties with respect to the evacuation, documentation, identification, registration and handling of—and the communication of information on—bodies during combat in the field. These obligations are meant to ensure proper, respectful handling of bodies during combat, which would also make it possible to know the fate of the fallen in the future. These obligations are anchored, inter alia, in arts. 16-17 of the First Geneva Convention, arts. 19-20 of the Second Geneva Convention, art. 120 of the Third Geneva Convention, and arts. 27 and 130 of the Fourth Geneva Convention (for more, see: HCJ 4764/04 Physicians for Human Rights v. IDF Commander [53], 401-404 ; the Barake case). The Geneva Conventions do not establish an obligation to return bodies within the framework of an international armed conflict. The reason for this is that the representatives of the delegations who took part in formulating them preferred leaving this option open, since some of the delegations preferred that the dead to be buried on the battlefield (see: J.S. Pictet, Commentary of Geneva Convention (1949) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 181 (1952)). However, even if the Conventions do not state an obligation to return bodies, the interpretation specified in the Red Cross's updated commentary on the First Geneva Convention (International Committee of the Red Cross Commentary of 2016 of I Geneva Convention (1949) For the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 1643-1647 (2016)) states unequivocally that the preferred option is to return the bodies to the family members of the fallen:

 

The obligation to ensure that the dead are buried or cremated can be satisfied in different ways.

…The preferred option is the return of the remains of the deceased to their families so that they may bury or cremate them in accordance with their religious beliefs and practices. Another reason why this option is preferable is that it enables the families to mourn their loved ones. Indeed, return of the dead to their families can be considered a basic humanitarian goal, recognized in both conventional and customary humanitarian law.

 

Furthermore, the First Protocol adds and anchors a specific requirement to return bodies in certain circumstances. The Protocol establishes that the remains of people who died as a result of occupation situations or acts of hostility should be buried respectfully, and that as soon as circumstances permit, the parties to a conflict are expected to reach an agreement on their return (art. 34 §2(c)). The Protocol further states that, if no such agreement is concluded, the party holding the bodies may offer to return them (art. 34 §3). While the articles of the Protocol state that the parties "shall conclude agreements" without imposing an obligation to return bodies, their tenor is clear. The commentary on the Protocol even clarifies that although this arrangement seemingly applies in certain circumstances only, it might serve as a good platform for returning bodies in other circumstances as well (Commentary on the Additional Protocols to the Geneva Conventions of 12 August 1949, para. 1330 (1977)). Guidelines in a similar spirit also exist in the accepted interpretations of customary international law. Thus, the rules in the study by the International Committee of the Red Cross explain that a party to an international armed conflict must make every effort to facilitate the return of a dead person's remains to the other side upon its request (see: Jean-Marie Henckaerts and Louise Doswald Beck, Customary International Humanitarian Law, Vol. I: Rules, Rule 114 (2006)). As it transpires from this study, similar instructions appear in a number of military manuals, including in the United States, which announced its support of the rules of the First Protocol relative to the return of bodies in an international armed conflict.

 

32.       Beside these provisions, international humanitarian law includes norms pertaining to non-international armed conflicts. In this context, there is no denying that the law is more vague (see Petrig's criticism on this matter, 353). However, Common Article 3 of the Geneva Conventions, concerning the right to dignity, as well as certain provisions of the Second Protocol, might apply. While these provisions do not establish an explicit prohibition on holding bodies, they, too, can be used to derive obligations relating to handling deceased persons and bodies. We would further note that even in a non-international armed conflict, the provisions of customary international law may apply. In this context, the study conducted by the International Committee of the Red Cross (ibid.) specifies that even though the applicable rules on returning bodies in non-international armed conflicts are vague, the international legal and humanitarian organizations have a clear position on the subject. Thus, for example, the 22^nd Conference of the Red Cross established obligations aimed at ensuring that parties to a conflict would make every effort to facilitate the return of a dead person's remains to the other side of a conflict. Similar resolutions were rendered by the UN General Assembly in 1974, and by the 27^th Conference of the Red Cross in 1999, which stated that all parties to an armed conflict must ensure that "every effort is made... to identify dead persons, inform their families and return their bodies to them". The International Committee further added that this was required in view of the basic rights accorded to the families of the dead (ibid, p. 414).

 

33.       International human rights law—which complements the laws of armed conflict—also includes general provisions on the right to dignity and to family life that are relevant to our case. These provisions are anchored, inter alia, in the European Convention on Human Rights; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter: the Convention against Torture); and the International Covenant on Civil and Political Rights. These provisions do not lay down an explicit ban on holding bodies, but the legal approach in this matter can be inferred from them. We would note that, in accordance with the provisions included in these conventions, the UN Commission on Human Rights issued a number of resolutions against Belarus, Tajikistan and Uzbekistan stating that their refusal to return bodies of deceased persons to their families was a violation of rights (see: Staselovich v. Belarus, Communication No. 887/1999 (2003); Bazarov v. Uzbekistan, Communication No. 959/2000 (2006); Sultanova v. Uzbekistan, Communication No. 915/2000 (2006); Khalilova v. Tajikistan, Communication No. 973/2001 (2005); Shukurova v. Tajikistan, Communication No. 1042/2002 (2006)). Another thing to note is that the UN committee in charge of verifying the implementation of the Convention against Torture looked into the Israeli government's policy on retaining terrorist bodies. In its conclusions of 2016, the Committee's recommendation to the State of Israel was to take all necessary steps to return the terrorists' bodies to their families as soon as possible (see: UN Committee Against Torture (CAT), Concluding Observations on the Fifth Periodic Report of Israel, 42-43 (2016)). Note that the Israeli government's position is that the Committee's recommendations have no binding legal force).

 

34.       The rulings of the European Court of Human Rights (ECHR) likewise attest that holding bodies is a legally problematic move from the perspective of human rights law. It was ruled, for example, that Russia's refusal to return terrorists' bodies to their families in Chechnya contravened a number of provisions in the European Convention on Human Rights (Sabanchiyeva v. Russia Judgment [90] (hereinafter: the Sabanchiyeva case); Maskhadova v Russia Judgment [91] (hereinafter: the Maskhadova case). The European Court emphasized that the decision by the Russian authorities violated protected fundamental rights, among them the right to respect for private and family life, protected by virtue of art. 8 of the European Convention on Human Rights. This conclusion was based on precedents that gave expansive interpretation to the right to family life and the possibility for relatives to unite with their kin (see, for example, Pretty v. The United Kingdom [92]; Pannulullo v. France  [93]; Girard v. France [94]; Dodsbo v. Sweden [95]; Hadri-Vionnet v. Switzerland [96]). The European Court did rule that in holding the terrorists' bodies, the Russian authorities acted "in accordance with a law" under domestic Russian Law, as required by art. 8 of the European Convention, and it even agreed to view the purpose for which the said law was enacted in domestic Russian Law as legitimate in itself. At the same time, it was ruled that the Russian arrangement did not meet the proportionality requirement, because of its sweeping nature and its failure to strike a proper balance between conflicting interests and rights.

 

35.       With regard to the ruling of the European Court on the Russian arrangement, we would note in passing that even if this arrangement had been found to be legal, it would not in any case have been possible to draw an analogy from it to the Israeli arrangement. Contrary to Israeli Law, the Russian arrangement included unique, concrete and explicit provisions of law that positively prohibited the return of terrorists' bodies. This arrangement was included in a law titled Federal Interment and Burial Act, Law no. 8-FZ, and a decree titled Decree no. 164 of the Government of the Russian Federation (20.3.2003). The Russian Law explicitly permitted action against bodies of persons defined as "terrorists" even in the absence of any objective reason preventing their return. It stated in no uncertain terms that their bodies would not be handed over for burial, and that their place of burial would not be divulged, as follows: "The interment of persons against whom a criminal investigation in connection with their terrorist activities has been closed because of their death following interception of the said terrorist act shall take place in accordance with the procedure established by the government of the Russian Federation. Their bodies shall not be handed over for burial and the place of their burial shall not be revealed" (§4) (English translation taken from the ruling in the Sabanchiyeva case). Furthermore, the authorities' action in Russia was also anchored in an explicit decree that regulates, in precise and rigorous terms, the way that bodies should be kept and their burial arrangements. Moreover, in the petitions in the Sabanchiyeva case and the Mashkadova case, it was argued that Russia was in fact the only state beside Israel that had a clear policy, seemingly grounded in law, on holding terrorists' bodies. The Israeli government did not contest this claim in the judicial proceeding conducted before us, nor did it point to any other country in the world with a similar arrangement.

 

36.       Along with this, we would note that other than the laws of armed conflict and human rights law, history has seen peace treaties signed between countries that have referred to how dead bodies are to be handled and repatriated (e.g. the Treaty of Versailles, 1919, arts. 225-226).

 

37.       The picture that emerges from the review is that although neither international humanitarian law nor international human rights law establish a statutory prohibition on holding bodies in an armed conflict, this practice is met with reservations, and involves considerable legal difficulty. True, it is possible to imagine situations where security interest might justify a party to a conflict holding bodies for certain periods of time within the framework of an armed conflict, for example, when battle on the ground is protracted, or certain bodies are required for investigation purposes. This is particularly so when both parties to a conflict simultaneously keep bodies (although we should note that each party is severally held to comply with international law and act according thereto, and violation by one party cannot, in itself, justify violation by the opposing party). Indeed, in these exceptional cases, the temporary holding of bodies might reflect a proper balance between security interests and conflicting rights, while also being legal under international law. Still, notwithstanding the existence of possible exceptions, international law expressly instructs that the preferred option is to return the bodies. Clear, explicit rules instruct parties to armed conflicts to make every effort to return the deceased to one another. This conclusion is understood from the spirit of many legal provisions of the Geneva Conventions, the Protocols Additional to the Geneva Conventions, the various conventions on human rights, customary international law, the Red Cross commentary collections, judicial decisions by international tribunals, the professional literature on international humanitarian law and international human rights law, etc.

 

38.       As to the specific case of the State of Israel, its decision to hold terrorist bodies, as noted, is not based on international law but on domestic Israeli law. In any case, this decision also appears to raise weighty questions when examined in light of international law. The State wants to interpret reg. 133(3) of the Defence Regulations in a way that grants the Military Commander broad authority to order the burial of terrorists for negotiation purposes, whereas reg. 133(3) of the Defence Regulations does not refer at all  to relevant distinctions in international law and does not relate to it. The regulation makes no mention of the numerous obligations imposed on parties to conflicts by virtue of international law as regards the evacuation, documentation, identification, registration and handling of bodies, as well as the communication of information on bodies. In addition, the regulation does not factor in the full range of distinctions required by international law in a situation where terrorist bodies are held, including distinctions between different combat situations (routine, armed conflict, etc.); between different types of terrorists (combatants, "affiliated", civilians, etc.), and between different terrorists based on their territorial affiliation (residents of Judea and Samaria, residents of East Jerusalem, of Israel, etc.). Regulation 133(3) of the Defence Regulations does not "converse" with international law in these numerous contexts, in a manner that raises questions about the extent to which it conforms to international law. The Cabinet Decision is also silent on these numerous contexts. This fact naturally carries implications for the interpretation of reg. 133(3) of the Defence Regulations, and serves to reinforce the conclusion regarding its generality and its being a non-explicit provision of law.

 

The "Reciprocity" Claim and its Implications for the Decision

 

39.       An argument that floated in the background of the petitions—one that is detached from the interpretation, and that I believe warrants separate discussion—is the reciprocity claim. The claim is that the State of Israel is actually holding terrorist bodies because the Hamas organization is holding bodies of IDF soldiers, as well as Israeli civilians. Were it not for Hamas holding bodies of IDF soldiers, the State of Israel, too, would not have held bodies of Hamas-affiliated terrorists. There is no denying that this argument raises serious questions of principle, and certainly moral questions. One cannot ignore the strong gut feeling, also pointed out by Justice M. Cheshin in his minority opinion in the Bargaining Chips case, that a substantial, fundamental difference exists between a state of affairs where both sides to a conflict simultaneously hold bodies, and a second state of affairs where only one party to a conflict holds bodies and refuses to return them. Given the circumstances of the case, however, I do not consider it possible to lend much legal weight to the reciprocity claim, for a number of cumulative reasons.

 

40.       First and foremost, it is obvious that the reciprocity claim cannot replace the requirement for authority. The fact that Hamas holds Israeli captives and missing persons might constitute moral grounds for reciprocation, but does not replace the obligation to act on the authority of law. As pointed out, even justified administrative action can be found to be illegal in the absence of a source of authority. The authority requirement does not draw its vitality from the justification of the administrative action, but from the principle of the rule of law and from broad goals meant to limit the power of government and ensure individual liberties. The principle of the rule of law, and the authority requirement derived therefrom, are separate from the question of the morality of some concrete administrative action. These things must be distinguished. As Justice Zamir said, the principle requiring authorization in law "overrides other public interests, including interests of the first order"—and even an important security interest cannot legitimize administrative action not authorized by law—"This is the rule of law in government" (Zamir, Administrative Authority, 76). And note well that the obligation to act in compliance with a law that regulates the exercise of governmental power and its restrictions is particularly important in the fight against terrorism, where the wielding of governmental power often involves questions relating to human rights (see: Aharon Barak, The Supreme Court and the Problem of Terrorism, in Judgments of the Israel Supreme Court: Fighting Terrorism Within the Law 9 (2005); HCJ 168/91 Morcus v Minister of Defence [54], 470). As noted, the requirement of authorization in the law stands on its own. The reciprocity claim, justified and proper as it may be in moral terms, cannot legitimize the Military Commander's action in the absence of authorization in law for his action.

 

41.       Secondly, reg. 133(3) of the Defence Regulations does not stipulate any reciprocity condition. It does not establish that a necessary condition for holding bodies is for both parties to a conflict to hold bodies at the same time. The contrary is true: the authority in principle granted thereunder seems to be a broad authority that does not depend on the existence of any preconditions. The Cabinet Decision is also not explicit in this regard. While the Cabinet Decision was forward looking, at a time when Hamas held Israeli captives and missing persons, it did not clarify that it was only valid until their repatriation. Note that had there been a specific, explicit primary arrangement in Israeli Law that authorizes an administrative entity to hold terrorists' bodies for negotiation purposes, reciprocation ought to have been a primary and necessary condition. Indeed, if the purpose of the arrangement is to allow the State of Israel to negotiate with enemies for the return of its own sons, and if the State of Israel accepts (as it declared before us) that holding terrorists' bodies for negotiations should be reserved for situations involving concrete contacts for the exchange of prisoners and missing persons, it stands to reason that authority to hold bodies for negotiation purposes would be made conditional on both parties to the conflict simultaneously holding prisoners and missing persons. As noted, such a condition is absent from the Cabinet Decision and from reg. 133(3) of the Defence Regulations.

 

42.       Third, in the more general sense, one should bear in mind that the fact that the enemy acts in certain ways does not always justify similar action. As President Barak said: "This is the destiny of a democracy — it does not see all means as acceptable, and the ways of its enemies are not always open to it. A democracy must sometimes fight with one hand tied behind its back. " (the Public Committee case [49], para. 64, 844-845). In this context, as noted, even if one can envisage situations where the State of Israel would be able to hold bodies, and even if we accept the reciprocity claim in certain senses, this does not mean that the State of Israel can take every action taken by its enemies. “Reciprocity” does not necessarily mean “full reciprocity”. Indeed, even if the State of Israel sought to hold terrorists' bodies only when its enemies simultaneously held Israeli captives and missing persons, it would still be subject to internal norms that are incumbent upon it, and that it had itself chosen to abide, among them that its actions are in accordance with the law, meet the rules of proportionality, are consistent with various obligations in both domestic and international law, comply and respect constitutional balances, etc. In this sense, the assumption that the enemy's actions follow "different norms", some of them contrary to basic legal and humane norms, cannot serve as legal justification for sanctioning every action—by way of mirroring—on Israel's part as well.

 

43.       Finally, the reciprocity claim in this case ignores that the connection between the specific terrorists whose bodies are held by the State of Israel and Hamas is unclear. In this respect, the State made it clear that it did not claim that the terrorists whose bodies it holds are Hamas fighters. On the other hand, it was claimed that they are at most "affiliated" or "identified" with Hamas ideologically. Assuming even that Hamas were interested in holding negotiations on those bodies in dispute, it is obviously possible to imagine similar situations where the equation between the State of Israel and the terrorist organization would not be simple and clear-cut, and this too should be considered when examining the reciprocity claim.

 

44.       As noted, the conclusion is that the reciprocity claim cannot be accorded much weight within the judicial debate upon the petitions, and that it makes no difference to the analysis of the authority in this case.

 

The Remedy

 

45.       As explained above, Israeli Law does not grant the Military Commander authority to hold terrorists' bodies for negotiation by way of temporary burial or in any other way. As a general, non-explicit provision of law, reg. 133(3) of the Defence Regulations does not constitute such source of authority. Prospectively, the conclusion is that the Military Commander may not use his authority under the regulation to hold terrorists' bodies for negotiation. Retrospectively, the conclusion is that the burial orders that are the subject of the petitions were issued by the Military Commander unlawfully. A possible remedy in these circumstances is to declare those burial orders void, which would mean the immediate return of the terrorists' bodies to their families. However, considering the entirety of rights and interests at play, it is my opinion that if the State so wishes, it should be afforded the opportunity to formulate a full, complete legislative arrangement, in explicit, specific primary legislation that meets the relevant legal standards, and which will be intended and dedicated to treat of the issue of holding bodies for the desired purposes, and which would accord weight to the observations made in this judgment. While an outcome where the State of Israel continues to hold bodies even after it has been judicially determined that this action is done without authority is no simple matter, I believe that it is a balanced and appropriate outcome considering the totality of circumstances (on granting a remedy of the suspended voidance, see: Daphne Barak-Erez, Procedural Administrative Law, 430 (2017) (Hebrew); Yigal Marzel, Suspending a Declaration of Voidance, 9 Mishpat U'Mimshal 39 (2005) (Hebrew)). In light of the above, if my opinion be heard, my recommendation to my colleagues would be to grant the petitions, make the orders nisi issued within their framework absolute, and order the granting of a suspended declaration of voidance that would allow the State time to formulate a full legal arrangement within six months from the time of the rendering of this judgment. Should the State fail to formulate an arrangement by that time, the bodies of the terrorists whose matter was heard in the petitions shall be returned to their families. I would further recommend to my colleagues that we not issue an order for costs in this proceeding.

 

Comments on the Margins of the Decision

 

46.       Given my decision that reg. 133(3) of the Defence Regulations does not grant the Military Commander authority to hold terrorists' bodies for negotiation purposes, I need not address additional arguments raised by the Petitioners, including those made with respect to the Military Commander's exercise of his discretion and the purpose of his actions. I would note, in particular, that I have found no need to address the Petitioners' claim regarding the territorial application of the Defence Regulations. In this context, the Petitioners argued that even if reg. 133(3) of the Defence Regulations were determined to constitute a source of authority for the Military Commander's decision to hold bodies for negotiations, this authority would not have applied, in any case, to all the bodies in the petition. In their view, the authority under the Defence Regulations applies only to bodies of terrorists from Judea and Samaria, and not to bodies of terrorists from East Jerusalem. As I said, I am not required to rule on this claim, but I will note, beyond what is strictly necessary, that this claim is erroneous on its face. The Defence Regulations also apply within the State of Israel, as they constitute Mandatory legislation that predates the establishment of the State. Hence, the decision on the question of the Military Commander's authority by virtue thereof is also relevant to bodies of terrorists from East Jerusalem (see and compare: Michal Tzur (supervised by Prof. M. Kremnitzer), The Defence (Emergency) Regulations, 1945, The Israel Democracy Institute, Policy Paper No. 16, p. 11 (1999) (Hebrew); HCJ 5376/16 Abu Hdeir v. Minister of Defence [55], para. 32, per Justice E. Rubinstein); HCJ 5839/15 Sidar v. Commander of IDF Forces in the West Bank [56], para. 1, per Justice U. Vogelman).

 

47.       In debating the question of the remedy, I decided upon the remedy of a suspended declaration of voidness, in order to allow the State sufficient time to formulate a full, complete primary legislative arrangement. I would like to emphasize that, notwithstanding my decision to order that final remedy, this should not be taken as an expression of any position in regard to a decision, if such is made, to launch a legislative procedure. The decision to initiate a legislative procedure, with its possible implications, is the legislature’s to make, and it is assumed that it will exercise discretion as well as wisdom. It goes without saying that I am also not expressing any opinion on the content of any legislation that may be enacted. My only operative determination in this ruling is that reg. 133(3) of the Defence Regulations does not constitute a source of authority for the Military Commander to order terrorist bodies to be held for negotiation purposes. My judgment is based on this determination and it alone. As opposed to this, one should not read into it any other determination that might inhibit the Court from expressing positions on future legislation, including authority that may be granted by virtue of such legislation, its purposes, the discretion exercised within its framework, proportionality, etc. Of course, it can be assumed that these issues, too, might raise weighty legal questions in the future.

 

Summary

 

48.       This ruling addressed only a single question: whether reg. 133(3) of the Defence Regulations authorizes the Military Commander to order the temporary burial of terrorists' bodies for the sake of holding them for negotiation purposes. As explained, reg. 133(3) of the Defence Regulations does not constitute a source of authority for the Military Commander's action. This conclusion necessarily derives from the principle of the rule of law and the principle of administrative legality. It follows from interpretative analysis of the regulation's language, which indicates that this is a general, broad regulation that cannot be deemed explicit, specific legislation. It can also be understood from the purpose of the regulation, which comprises its historical context, its inner and external logic, and the application of the rules of interpretation applied in the Israeli legal system. As explained in the decision, the Mandatory legislator, followed by the Israeli one, never envisaged a situation related to the temporary holding of terrorists' bodies for negotiation purposes, and did not seek to put in place a unique arrangement to grant authority in that regard. Moreover, the conclusion in the matter of authority is reinforced when juxtaposed with this Court's rulings in other, similar contexts of terrorists' bodies and live detainees being held as “bargaining chips”, as well as when compared to international humanitarian law as it relates to the laws of armed conflict and to international human rights law.

 

49.       In effect, my judgment can be summarized as follows: The State of Israel—as a state under the rule of law—cannot hold terrorists' bodies for negotiation purposes in the absence of explicit enabling  legislation. If the State so wishes, it must formulate a full, complete legislative arrangement specifically tailored to this subject, in explicit primary legislation that meets the legal standards of Israeli law, and corresponds with those provisions of international law that are not disputed. Since Israeli law has no such legislative arrangement, I recommend to my colleagues that we grant the petitions, make the orders nisi issued within their framework absolute, and make a suspended declaration of voidness with respect to the burial orders, so that the State can formulate a full, complete, dedicated legal arrangement within six months of the rendering of this judgment. Should the State fail to formulate a legal arrangement by that time, the bodies of the terrorists whose matter was heard in the petitions shall be returned to their families.

 

50.       Before concluding, and not unnecessarily, I would like to note that in writing my opinion, I constantly had in mind the family members of IDF soldiers Lieutenant Hadar Goldin of blessed memory and Staff Sergeant Oron Shaul of blessed memory, and of Israeli civilians Avera Menigstu and Hisham al-Sayed, as well as the relatives of the victims of the hostile acts committed by the terrorists whose case was heard in the petitions. Truth be told, deciding these petitions has been extremely hard for me. The suffering of the Israeli prisoners and missing persons held in Hamas captivity and the pain of their family members are unbearably heavy. The human outcome is hard, especially when the State believes that holding the terrorists' bodies might help obtain a deal for their repatriation. At the same time, as judges, our job is to rule in accordance with the law and the binding legal rules. To quote President Barak in the Bargaining Chips case [48], "as important as the purpose is of the release of prisoners and missing persons, it is not sufficient – in the framework of the petition before us – to legitimize all means." (ibid, para. 24, at p. 744). As previously noted, the State of Israel cannot, as a state under the rule of law, hold bodies of terrorists for negotiation purposes without authority. It has the option to arrange the issue in law, and the hope is that—with or without regard for this—all the legal means will make it possible to bring home the Israeli captives and missing persons as soon as possible.

 

51.       All that remains for me to do is to end this judgment on the well-known words of Justice H. Cohn in the Qawasmeh case, which I also had the opportunity to quote in the past in CFH 5698/11 State of Israel v. Dirani [57]:

 

How is the fighting of the State different from the fighting of its enemies? The one fights while upholding the law, whereas the others fight while breaking the law. The moral strength and material justification of a government’s fight are entirely contingent upon upholding the laws of the State. By giving up this strength and this justification of its fight, the government serves the enemy’s objectives. The moral weapon is no less important than any other weapon ‒ and perhaps superior—and there is no moral weapon more effective than the rule of law.

 

 

 

 

Justice G. Karra:

 

I concur in the opinion of my colleague Justice Y. Danziger, and will add this: Regulation 133(3) authorizes the Military Commander to order the place of burial of any person's corpse, who will bury that corpse, and at what time it will be buried, but it cannot be understood as testifying to the existence of authority for the Military Commander to hold a corpse after its burial. Since "the limits of interpretation are the limits of language", the language of the regulation cannot be interpreted to include what is not there.

 

 

Justice N. Hendel:

 

The State of Israel has existed in a state of emergency—literally, as well from the legal standpoint—since the day of its inception. A state of emergency, as well as of war. The law of war, in all its elements and aspects, is no oxymoron, but rather a constant legal challenge imposed upon the State by circumstances. Reality, which forms the factual foundation, does not dictate an outcome one way or another. This area—the law of war—is perhaps the most difficult of  legal disciplines. It is not theory, but concrete questions that stand on the shoulders of other questions, some of which are virgin soil: life and death, defense and morality, and even defining the kind of society we are, and the kind of society we choose to be. Caution is required, as well as sensitivity and legal analysis in accordance with its rules. Deciding the issue of handling terrorists' bodies thus requires an in-depth, meticulous and rigorous legal journey through the fields of the relevant norms and considerations—upon which I shall elaborate in my opinion.

 

1.         On January 1, 2017, the Israeli government—through the Ministerial Committee on National Security Affairs—adopted a new policy on handling bodies of terrorists. According to this decision, such bodies would be returned, as a general rule, to relatives "under restricting conditions" set by the security establishment. However, two groups form an exception to this rule: Bodies of terrorists who had belonged to the Hamas terrorist organization (hereinafter: Hamas) or had committed a "particularly exceptional terrorist act", would be held by Israel by way of burial. The decision by the Ministerial Committee was based on security evaluations that suggested that holding bodies of terrorists belonging to the last two categories—and hence known to hold "value" for Hamas—"might aid" in repatriating the civilians and the bodies of fallen IDF soldiers held by the terrorist organization, and facilitate future negotiations on the matter. At the very least, holding terrorists' bodies might improve the nature and parameters of a future repatriation deal, together with the significant, related security implications. Thus, the policy adopted by the Ministerial Committee was meant to promote the safe return of Israeli civilians Avera Mengistu and Hisham a-Sayed, and the return for interment in Israel of IDF combatants Lieutenant Hadar Goldin of blessed memory and Staff Sergeant Oron Shaul of blessed memory—while protecting the security and safety of the general public.

 

According to this policy, and by virtue of burial orders issued by the relevant Military Commanders, four bodies of terrorists were buried in the cemetery for fallen enemies in Amiad, and DNA samples were taken to allow for future identification. Two other bodies of terrorists are held by the Israel Police, with no burial orders having been issued for them as yet. On September 13, 2017, we acceded to the request of the Petitioners in HCJ 285/17 and HCJ 6524/17, and instructed the Respondents—pursuant to previous decisions—not to bury these bodies until a decision is made on the petitions.

 

2.         In their petitions, the Petitioners ask that we order the Respondents to return the bodies of their relatives, claiming that holding the bodies violates the constitutional right—of the terrorists and their family members— to dignity, constitutes collective punishment, and is contrary to international law. From the Petitioners' perspective, the Respondents' policy is unreasonable and disproportionate. Furthermore, in the absence of explicit grounding in primary legislation, it violates the principle of administrative legality and does not meet the conditions of the limitation clause. As opposed to this, the Respondents invoke reg. 133(3) of the Defence (Emergency) Regulations, 1945 (hereinafter: the Defence Regulations; the regulation, verbatim, will be presented below), which authorizes the Military Commander to order the place, time and manner of burying "any person"—and thus also applies in the case of terrorists. The Respondents believe that the limited violation of the rights of the dead terrorists and their families is reasonable and proportionate, and given the circumstances—i.e., the Israeli civilians and the bodies of fallen soldiers held in Hamas hands—even consistent with the binding provisions of international law.

 

3.         In his comprehensive opinion, my colleague Justice Y. Danziger determined that refraining from delivering the terrorists' bodies to their families violates their constitutional right to dignity—since even "the most abhorrent murderer" is entitled to a dignified, proper burial—and hence adopting this measure requires "clear, specific and explicit" authorization in primary legislation. The problem being that reg. 133(3) of the Defence Regulations, on which the Respondents relied, "does not constitute a specific, explicit, primary source of legislation that authorizes the Military Commander to order the temporary burial of terrorist bodies for negotiation purposes", while the residual powers of the government do not comprise steps that violate fundamental rights. My colleague therefore proposes to grant the petitions in the heading, and order a suspended declaration of voidness of the relevant burial orders—should the State fail to resolve the issue with suitable legislation by June 1, 2018.

 

            I accept my colleague's position that there is value to comprehensive legislative regulation of the authority to hold terrorists' bodies, while specifying the relevant considerations and criteria for exercising it, and laying down the manner and limitations for holding bodies. I am also willing to concede that the handling of terrorists' bodies might infringe the right to dignity. In this respect, even the existing international law and custom carry weight. In other words, not every instance whatsoever of handling bodies is immune to judicial review. As grave as the terrorists' activity may be, it is not their values or actions that will dictate to us the binding legal norms within our system. But even from this perspective, the conduct of Hamas and the terrorist organizations, and the prevailing security situation, are pertinent in examining the violation of the right to dignity and its magnitude. For this reason, but not only for this reason, bringing the terrorists' bodies to proper burial, even if in a different form than the one they had hoped for before setting out on their murderous rampages, considerably reduces the violation.

 

            When all is said and done, I cannot concur in the result reached by my colleague, and condition the validity of the burial orders on some future legislative arrangement. For the reasons that I shall clarify below, my position is that reg. 133(3) of the Defence Regulations authorizes the Military Commander to order the time, place and mode of burying terrorists' bodies, and that considerations having to do with preserving public safety and security—including against a background of civilians or bodies of fallen soldiers being found in enemy hands—lie at the core of this authority. The aspiration to promote a lex ferenda, i.e., a complete, comprehensive legislative arrangement of the issue, cannot blur the nucleus of authority entrusted by the existing law to the Military Commander—reg. 133(3) of the Defence Regulations. In these circumstances, although holding the terrorists' bodies oversteps the residual authority of the Israeli government (see HCJ 11163/03 Supreme Monitoring Committee v. Prime Minister [58], para. 20, per Deputy President M. Cheshin), I have found no real substance in the Petitioners' claims as concerns the authority.

 

4.         Before I delve into the interpretation of reg. 133(3) of the Defence Regulations, we should recall that its current version was shaped in early 1948, when its scope was extended and the authority was vested in the Military Commander (sec. 2 of the Palestine (Defence) Order In Council, 1937, Official Gazette, Supplement 2, 66)). As such, the regulation and its provisions come under the aegis of the preservation of laws provision in para. 10 of Basic Law: Human Dignity and Liberty, and are not subject to the conditions of the limitation clause in sec. 8 of the Basic Law, including the requirement that the violation of rights be done "by law… or by virtue of express authorization therein".

 

            It has indeed been ruled that even in the absence of direct applicability of the limitation clause—whether because the violated rights lack constitutional status, or because their violation is not anchored in secondary legislation—"a piece  of legislation is not to be interpreted as authorizing a violation of fundamental rights unless the authorization to do so is clear, unequivocal and explicit" (HCJ 7803/06 Abu Arfa v. Minister of Interior [34], para. 52, per justice U. Vogelman (hereinafter: the Abu Arfa case); LCrimA 10141/09 Ben Haim v. State of Israel [59], para. 22, per President D. Beinisch; HCJ 6824/07 Manaa v. Tax Authority [14], para. 14, per Justice U. Vogelman (hereinafter: the Manaa case). Considering the importance of the fundamental rights, surely the legislature did not intend to authorize the executive branch to violate them, unless this is explicitly stated in law. This interpretative presumption also rests on the difficulties raised by a general authorization, be it implied or vague, which hinders the identification of the nature and boundaries of the authority, and allows for its arbitrary use (ibid.; HCJ 337/81 Mitrani v. Minister of Transport [60],  355-358).

 

            That being said, the case-law requirement for explicit authority should not be given strict, rigid, literal interpretation. On the contrary, it is a flexible requirement whose real content varies depending on "the nature of the right being violated and its underlying reasons, the relative social importance of the right, its social repercussions, the identity of the violating authority and how severely the protected right is violated in the situational context". Even when the language of the law does not clearly delineate the scope and boundaries of the authority, "It suffices that its particular purpose… makes the existence of authorization to violate the fundamental right a necessary conclusion" in order to fulfil, in the appropriate cases, the explicit-authorization requirement (HCJFH 9411/00 Arco Electrical Industries Ltd. v. Mayor of Rishon Lezion [61], para. 11, per President D. Beinisch).

 

            These following was stated in relation to the explicit-authorization requirement in the limitation clause, but it equally holds true for its case-law counterpart, inasmuch as:

 

Interpreting the case-law rule on clear, and explicit authorization “flexibly” rather than “literally", and adopting a “contextual” approach by which the degree of strictness in applying the explicit-authorization requirement is followed in accordance with the relative importance of the violated right, the degree of its violation, the purpose of the law and the entirety of circumstances, promotes interpretative harmony, and is also justified for substantive reasons, in that it is characterized by flexibility and lack of dogmatism, as is required in a discourse on rights, and strikes a balance between the reasons justifying the limitation of human rights only in primary legislation and contrary values of administrative effectiveness and effective maneuvering room" (the Manaa case, para. 15; the Abu Arfa case, ibid; see and compare CA 1600/08 Maximedia Outdoor Advertising v. Tel Aviv – Jaffa Municipality [62], paras. 7-8, and 12).

 

The question whether or not a given piece of legislation comprises clear, explicit authorization cannot, therefore, be resolved through exclusively literal interpretation. The interpreter must delve into the purposes of the relevant norm, and examine whether, given the overall circumstances of the matter, they attest to a legislative intent to grant the executive branch permission to infringe the fundamental rights in question.

 

5.         Against this background, I will now address the interpretation of reg. 133(3) of the Defence Regulations, which instructs as follows:

 

Notwithstanding anything contained in any law, it shall be lawful for a Military Commander to order that the dead body of any person shall be buried in such place as the Military Commander may direct. The Military Commander may by such order direct by whom and at what hour the said body shall be buried. The said order shall be full and sufficient authority for the burial of the said body, and any person who contravenes or obstructs such order shall be guilty of an offence against these Regulations.

 

As we know, "the limits of interpretation are the limits of language ", and so the first order of business is to examine the language of the relevant norm, in context, and weed out interpretations that find no support therein (the Manaa case, para. 19; Aharon Barak, Interpretation in Law, vol. 2 – Statutory Interpretation, 104 (1993) (hereinafter: Interpretation in Law) (Hebrew)). A text does not deviate from its plain meaning, and read literally, reg. 133(3) of the Defence Regulations tips toward the Respondents' position. The Regulation grants the Military Commander broad discretion, allowing him to order where and when the body of "any person" is to be "buried"—and by whom. There is nothing in the text to point to a distinction between permanent and temporary burial—since the term "burial" is used in both contexts (see, for example, secs. 3A and 4B of the Military Cemeteries Law, 5710-1950; Dorit Gad, Second Jewish Burial–“Gathering Bones”, 26-27 Yahadut Hofshit (2003) (Hebrew))—and surely the phrase "any person" does not rule out terrorists' bodies. Furthermore, as the words "by whom… the said body shall be buried" suggest, the Military Commander's authority does not come down to limiting the identity or number of those attending the funeral (a limitation discussed in HCJ 3933/92 Barakat v. GOC Central Command [26], 5-6; (hereinafter: the Barakat case), but also pertains to the identity of the burying entity—in a way that allows a departure from the norm relating to the delivery of the body to the family. The regulation thus grants the Military Commander a broad array of powers, from specifically ordering the time of burial to a more significant decision on the identity of the burier. At any rate, as my colleague also suggests, the regulation makes no direct or detailed reference to the possibility of temporary burial with negotiations taking place in the background.  For this reason, I am willing to assume, within the framework of this decision, that its language does not tip the scales in favor of the Respondents, and that the Regulation also "tolerates" a more restrictive interpretation.

 

6.         Having said that, we must move on to the second stage of the interpretative process and examine which of the proposed alternatives optimally fulfils the purpose of the legislation in both its layers (HCJ 693/91 Efrat v. Director of Population Registry [63], para. 11, per President A. Barak; (hereinafter: the Efrat case). First, we need to trace the subjective purpose that the legislature sought to advance—and which can be established, inter alia, by analyzing the social and legal background of the legislation, the explanations given for it, as well as the language and structure of the law and the interrelation among its various provisions (ibid, 13-15; Interpretation in Law, pp. 201-202).

 

            The first pertinent reference in Mandatory legislation to the issue at hand appeared in reg. 302 of the Prison Regulations, 3 Laws of Palestine  2091 (1925), which provided that after hanging prisoners sentenced to death, "the body shall hang for one hour, after which it will be taken down and handed over to the relatives for burial. Should the relatives  not desire to take charge of the body, it will be buried at  Government expense". Incidentally, it is interesting to note that this provision deviates from the law practiced in Britain at the time, under which prisoners who were executed were buried in the prisons, and not handed over to their families (see, for example, Caroline Sharples, Burying the Past? The Post-Execution History of Nazi War Criminals, in A Global History of Execution and the Criminal Corpse 249, 250-251 (Richard Ward, ed., 2015)). In any event, reg. 19C of the Emergency Regulations 1936—as amended in October 1938, under the Palestine (Defence) Order in Council, 1937, Official Gazette, Supplement 2, 825, 1095—authorized the District Commissioner to deviate from the provisions of reg. 302 on handing over the body to relatives, and to order, "Notwithstanding anything contained in any Ordinance or law… that the body of any person who has been executed at the Central Prison, Acre, or the Central Prison, Jerusalem, shall be buried in such cemetery of the community to which such prisoner belongs".

 

            This amendment of reg. 19C was preceded by another, in early 1938, wherein the coroner was authorized "not to perform an autopsy on the corpse of a person" who was "killed as a result of actions by His Royal Majesty's navy, army or air forces… for the purpose of suppressing riots" (Palestine (Defence) Order in Council, 1937, Official Gazette Supplement 2, 753, 77). The consolidation of these two provisions into one regulation, under the umbrella of emergency regulations, creates the impression that what we have here is a general arrangement on processing the bodies of persons killed or executed, against the background of hostilities with the security forces. This impression grows stronger in view of the social reality that led to the enactment of the emergency regulations—that is, the Arab revolt that took place in Palestine between 1936 and 1939, which met with a strong response from the Mandatory authorities. Scholars note that the increasing magnitude of the hostilities shifted the balance between the civil and military authorities in the country, and that by the end of 1938, the pendulum had already swung in favor of the latter, "leading to the implementation of complete military control in Palestine by October 1938" (Jacob Norris, Repression and Rebellion: Britain’s Response to the Arab Revolt in Palestine of 1936-9, 36 The Journal of Imperial and Commonwealth History 25, 29 (2008)). The arrangements relating to the handling of corpses of the fallen and of terrorists should thus be seen as an integral part of the continuous struggle of the colonial authorities against terror, in which extensive use was made of legal tools meant to broaden their powers, "as a means of specifically combating the revolt" (ibid, pp. 29-30; for a general description of the colonial fight against the locals' uprising, see also Yehoshua Porat, From Riots to Rebellion: The Palestinian Arab National Movement, 1929-1939 (1979) (Hebrew); Yigal Eyal, The First Intifada: The Suppression of the Arab Revolt by the British Army in Palestine, 1936-1939 (Hagai Porshner, ed., 1998) (Hebrew)).

 

            Let us continue to present the socio-legal historical background. A few years later—this time in the face of the intensifying Jewish struggle for independence (CrimA 6434/15 State of Israel v. Shavir [64], para. 4, per Deputy President E. Rubinstein)—the Defence (Emergency) Regulations, 1945 replaced the 1936 Regulations, and reg. 19C was reincarnated—lock, stock and barrel—in reg. 133 of the new regulations. Historians note and that the Mandatory authorities exercised this authority, and sometimes dictated the place of burial of those executed, in disregard of the family's requests and those of the deceased themselves (thus, for example, the Mandatory authorities decided to bury the three Olei Hagardom [“Those who went to the Gallows”] Eliezer Kashani, Mordechai Alkahi and Yehiel Dresner of blessed memory in Safed, even though all three expressed their wish to be buried in Rosh Pina, and despite the request of the Alkahi and Kashani families to bury their sons in their place of residence in Petah Tikva (Bruce Hoffman, Anonymous Soldiers: The Struggle for Israel 1917-1947 530 (2015); 4 Hanged in secret at Acre: Funeral at Safad, Palestine Post, April 17, 1947; Families were not told before, Palestine Post, April 17, 1947).

 

            In any case, in January 1948, after the UN partition resolution was adopted and the first shots of the War of Independence were fired, substantial changes were made to sub-sec. (3) of the new regulation, the sub-section that is our main focus: The narrow scope, limited to the burial of prisoners who had been executed, was replaced by a broad reference to "the body of any person", and the provision requiring burial of deceased persons in the cemetery of the community they belong to was dropped. What this means is that the original authority to prevent the return of the body to relatives was significantly broadened, and transferred from the District Commissioners to the Military Commander. Here too, the broader authorities granted to the Military Commander were not detached from the security context, i.e. Britain's joining the fighting that broke out between the Jews and the Arabs in November 1947 (see: Benny Morris, 1948: A History of the First Arab-Israeli War 97 (2010). Benny Morris is a history professor at Ben-Gurion University).

 

7.         Hence, the Mandatory legislator considered the Defence Regulations—including reg. 133(3)—a legislative platform intended to give the (mainly military) authorities effective powers with which to fight the terror directed at them from both sides of the Palestine divide (Tom Segev, Days of the Anemones: Palestine during the British Mandate 387 (1999) (Hebrew) [English: One Palestine Complete: Jews and Arabs Under the British Mandate (trans. Haim Watzman) (2000)). Initially, the regulation was satisfied with laying down a narrow exception to the norm relating to the return of prisoners' bodies to their families, but the authority was later expanded to apply to other bodies as well—belonging, as evidenced by the other components of reg. 133(3) of the Defence Regulations, to terrorists killed by the "forces of His Majesty", or to the fallen of these "forces". Thus, even if the historical and legal background for reg. 133(3) of the Defence Regulations does not provide a direct answer to the question before us, it suggests that the Mandatory legislator sought to authorize the Military Commander to refrain from handing over bodies to the relatives given considerations of protecting public safety and security, and be satisfied with burying them at the time and place, and in the manner he saw fit. From here, it is but a short distance to determining that considerations having to do with releasing the bodies of fallen soldiers, or live civilians, held captive by terrorist organizations lie at the heart of this purpose.

 

8.         Indeed, identifying the subjective intent of the legislator is not enough—since the objective purpose of the law is much broader, and it has been held that "a piece of legislation often has an objective purpose that the members of the legislating body never contemplated" (the Efrat case, para. 12). This purpose is of secondary importance in our case, since, as this Court noted in regard to another provision of the Defence Regulations:

 

The interpretation of the Defence Regulations in the Mandatory period, where colonial values held sway, is not the same as their interpretation in the State of Israel, where Jewish and democratic values hold sway. The Defence Regulations will therefore be interpreted based on the fundamental principles of the Israeli legal system as they evolved over the years (HCJ 6893/05 Levy v. Government of Israel [65], para. 9, per President A. Barak (hereinafter: the Levy case).

 

It is therefore necessary to examine the objective purpose of reg. 133(3) of the Defence Regulations, which consists of the concrete purpose—stemming "from the type of legislation and the nature of its arrangements"—and of the general purpose, which derives from the fundamental values of the system and from legislative arrangements "that are topically close" (Interpretation in Law, pp. 202-203; CA 8622/07 Rotman v. Ma'atz - National Roads Company of Israel Ltd., [66], para. 98).

 

9.         Analysis of the Defence Regulations shows that their main and undeniable purpose is to maintain state security, and public safety and order, while focusing on the fight against terror:

 

First and foremost are considerations of state security and public order. These are the specific purposes underlying the exercise of the authority under the Defence Regulations. These purposes are inferred from the provision of the Palestine (Defence) Order in Council, by virtue of which the Defence Regulations were enacted. The Order in Council established that the regulations were meant "… to ensure the public's safety, the protection of Palestine, the imposition of public order and the suppression of uprisings, rebellions and riots, and to maintain the supply and services necessary for the public” (sec. 6). These objectives can also  be seen on close examination of the Defence Regulations themselves (the Levy case, p. 886; see also HCJ 680/88 Schnitzer v. Chief Military Censor [67],  628).

 

In the same spirit, the Defence Regulations were described, in the Abu Safa case, as "security-military emergency legislation, which contains broad enforcement powers and diverse tools, administrative and punitive, for fighting all types of terror, including from the economic aspect" (HCJ 3037/14 Abu Safa v. Ministry of Interior [68], para. 10, (emphasis added)).

 

The Defence Regulations give broad interpretation to the purpose of maintaining state security and public safety. They do not stop at granting powers pertaining to the "narrow", direct military struggle against armed terrorist operatives, but equip the authorities with a much larger toolbox. As stated:

 

It has long been understood that the war on terrorism is not simply a matter of thwarting a terrorist just moments before he carries out his plan. It is an extensive struggle aimed at undermining the infrastructure of terrorist organizations, the resources available to them and their ongoing operations. This fight involves diverse means, among them legal ones… The offence of performing a service for a terrorist organization, like other provisions in the Defence Regulations and the Counter Terrorism Law, expresses the recognition that the fight against terrorism also involves undermining the supporting structure of terrorist organizations. The law recognizes the importance of neutralizing terrorist activity while still in the bud, as well as the need to target infrastructures and mechanisms that allow it to grow (CrimA 6434/15 State of Israel v. Shavir [64], paras. 59-60, per Justice D. Barak-Erez).   

 

In this spirit, regs. 84 and 120 of the Defence Regulations allow the Military Commander to act against the economic infrastructure driving the terror machine and confiscate property linked—itself or through its owners—to these activities (on these regulations, which are no longer in effect within the territory of the State of Israel, see HCJ 2959/17 Alshuamra v. State of Israel [69], paras. 12-23 (hereinafter: Alshuamra case). Similarly, it was determined that reg.125 of the Defence Regulations authorizes the Military Commander to declare an area closed by order for the purpose of "delimiting training grounds, setting up military installations, etc." (CA 2281/06 Even Zohar v. State of Israel [70], para. 5, per Justice A. Procaccia, and compare para. 9 per Deputy President S. Joubran in the same matter; (hereinafter: the Even Zohar case))—and not necessarily for the purpose of preventing immediate confrontation (see the Levy case, pp. 892-893).

 

Regulation 133(3), which forms an integral part of the Defence Regulations, should also be interpreted in light of this broad purpose, i.e., promoting a systematic fight against terror and its various circles of support and activity. It goes without saying that curtailing the ability of terrorist organizations to use bargaining chips in order to gain achievements constitutes an integral part of this struggle.  The ongoing war on terror takes on various forms, and must adapt itself to the enemy's innovations. Actions result in reactions, and so the chain changes. New and ugly facets of terrorist organizations are nothing new. The tactics frequently change, and cannot be ignored. One might say that there is a direct relationship between the breadth of the fight against terror and the breadth of interpretation: when the former broadens, the interpreter must draw the necessary conclusions, and give the relevant norm a contemporary interpretation that expresses its spirit and purpose. The purpose of the Defence Regulations is broad, and its practical "translation" must be adapted to the changing reality—within the bounds of authority delineated by the legislature. The purpose is thus adapted to reality and is integrated with the powers granted to the Military Commander. Ignoring the frequently changing needs misses the clear purpose of the Defence Regulations, including reg. 133(3) that is the focus of this case.

 

10.       An "offshoot" that branches out from the purpose of maintaining state security and public order is the creation of individual and environmental deterrence. This purpose is expressed in a series of authorities that the Mandatory legislator granted to the Military Commander, believing that exercising them could "deter potential terrorists from carrying out a terrorist act and take human lives"—even if they are clearly devoid of direct, tangible military value (HCJ 5290/14 Qawashmeh v. Military Commander [71], para. 21).

 

Regulation 119 of the Defence Regulations, which authorizes the Military Commander to order the forfeiture and destruction of terrorists' houses, stands out prominently in this case, since its purpose—as determined by this Court repeatedly—"is not to punish but deter" (see, for example, HCJ 4597/14 Awawdeh v. Military Commander [72], para. 19). In other words, the justification for exercising the authority to order forfeiture and destruction "lies entirely in its hoped-for impact on the environment, and more particularly the terrorist's surroundings" (HCJ 5376/16 Abu Hdeir v. Minister of Defence [73], para. 3 of my opinion), even though destruction carries no "pure" military value. A similar purpose is reflected in reg. 120 of the Defence Regulations, which authorizes the Military Commander to order the forfeiture of all the property of a person who committed  an offence against any of the regulations—even when the offences are unrelated to the property, such that the forfeiture has no "deterrent justification" (the Alshuamra case, paras. 13-15). Without making a definitive statement, it seems possible that reg. 133(3) of the Defence Regulations—which primarily affects the non-implicated surroundings of the dead terrorist—also carries a similar deterrent purpose.

 

11.       Another concrete purpose of reg. 133(3) of the Defence Regulations is to regulate the handling of enemy corpses while protecting the dignity of the dead. The regulation, which was, as noted, adopted against the background of the intensifying fighting against terrorist organizations and local militias, reflects the spirit of art. 17 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 1949,  which imposes a duty upon parties to a conflict to ensure honorable interment for the enemy's fallen. In other words, the legislator authorized the Military Commander to undertake the burial of these bodies, bearing in mind the possibility that at some point in time—or, as stated in art. 17: "as soon as circumstances permit, and at latest at the end of hostilities"—the bodies would be exhumed and handed over to the family members. Naturally, such burial is of a temporary character; it is meant to ensure that the deceased rests in peace until the time comes—when fighting ends, or when an exchange arrangements are concluded (as part of which, as the State has declared, hundreds of terrorists' bodies have been returned in the past decades).

 

            This purpose of the regulation is not only reflected in the longstanding practice of holding the bodies of enemy fallen and terrorists— although this type of custom carries significant interpretative weight in itself (see and compare: HCJ 3132/15 Yesh Atid v. Prime Minister [74], para. 2 of my opinion ). An examination of sec. 76 of the Counter Terrorism Law, 5776-2016, which revoked many of the provisions of the Defence Regulations, suggests that the legislature chose to leave reg. 133(3) of the Regulations unchanged. This stems, as evidenced by the explanatory notes to the amending bill Defence (Emergency) Regulations (Revocation of Regulations), 5773-2013,  from perceiving reg. 133(3) as a vital, irreplaceable source of authority "for the burial of enemy dead" (the details of the authority are regulated in various secondary sources, such as General Staff Order 38.0109 "Enemy Army's Dead – Procedure on Identification, Disposal of Effects, Reporting and Burial in Times of Emergency"). Beyond the security considerations in their "narrow sense", the regulation therefore seeks to ensure proper temporary burial of enemy dead, until their possible return to their countries and families. Note parenthetically that the legislature's choice to refrain from revoking the regulation is particularly significant in view of the customary practice of burying enemy dead in dedicated cemeteries, and in light of the ruling that sanctioned the holding of terrorists' bodies for considerations relating to negotiation with terrorist organizations (HCJ 6807/94 Abbas v. State of Israel [37]).

 

12.       This last purpose "bridges" the security purposes of reg. 133(3) of the Defence Regulations and the general purpose attributed to each piece of legislation, namely the protection of fundamental rights. It is true that the preservation-of-laws provision maintains the validity of the Defence Regulations, including reg. 133(3), but:

 

[that] their interpretation, especially when it comes to the objective sense, must be done in the spirit of the value-based normative declaration made in the Basic Law, while sometimes re-balancing the values underlying the piece of legislation, in the spirit of the renewed constitutional balance (the Even Zohar case, para. 5, per Deputy President S. Joubran).

 

In this sense—interpretation versus direct attack—the fundamental rights are back up for debate. Burying the dead as per their wishes and those of their family forms an integral part of the fundamental right to dignity—which in this context comprises two heads: the dignity of the dead and that of their family. As President A. Barak stated at the time, "human dignity is not only a person's dignity in life. It is also a person's dignity after death, and also the dignity of that person's beloved, who cherish their memory in their hearts. This dignity is reflected, inter alia, in the very erection of a gravestone, in visits to the cemetery on memorial days and public ceremonies, and in tending the grave" (CA 294/91 Jerusalem Burial Society v. Kestenbaum [75], 523).

 

The introduction of Basic Law: Human Dignity and Freedom gave the principle of "the dignity of the dead" constitutional status, since "'the dignity of dead people derives from that of living people'… The dignity of the living person is violated when he is no longer guaranteed in life proper protection of his dignity when he is no longer alive" (HCJ 52/06 Al-Aqsa Association for the Development of the Assets of the Muslim Waqf in the Land of Israel v. Simon Wiesenthal Center Museum Ltd. [76] para. 135, per Justice Procaccia (hereinafter: the Al Aqsa case). Beside this aspect, albeit lower on the normative scale (CA 7918/15 Doe v. Friedman [77], para. 4 (hereinafter: the Friedman case)—stands, as noted, the right of the family members to determine how the dead and his memory are to be treated. The assumption is that "a violation of his memory and dignity is bound and intertwined with a violation of their dignity" (the Al Aqsa case, para. 139). Public policy, and the value attached by society to the care of its dead, reveal other facets in the principle of the "dignity of the dead" (ibid, para. 151)—and in some cases might even override the "private" rights of the dead and their families, dictating that their choices about the way to handle the corpse should be ignored (HCJ 6167/09 Avni v. State of Israel [78]; but see CA 1835/11 Avni v. State of Israel [79],  and the Friedman case).

 

13.       In my view, the "dignity of the dead", as such, stands on its own legs, and is higher up in normative status than "the dignity of the dead person's family". The more challenging question what is the basis for the principle of the "dignity of the dead": is it a derivative of human dignity—i.e., whether, just as human dignity is an individual "asset", so is the dignity of the dead, regardless of the surroundings and those surviving the deceased; or is protecting the dignity of the dead meant to send a clear message to the living, as a promise that their dignity will be preserved after their death. As noted above, the answer seems to comprise both possibilities.

 

            In this regard, it is interesting to turn to Jewish law, which also comprises several levels of the right of the dead to dignity. One aspect is inherent in the halakhic injunction that it is "a religious duty to carry out the wishes of the deceased" (TB Gittin 14b). Commentators see the duty to honor the last wishes of the deceased and execute their will—including in matters unrelated to the distribution of the estate—as an expression of human dignity (Rabbi Osher Weiss, Minchas Osher - Bereshit, Parashat Vayekhi, Siman 66, 435-439 (2002) (Hebrew) in regard to Jacob's final charge in his blessings to his sons, and on his place of burial ["Bury me not, I pray thee, in Egypt"]). Another aspect is reflected in the biblical instruction not to leave an executed person’s body overnight, "for an impaled body is an affront to God" (Deut. 21:23). Rashi (Rabbi Shlomo Yitzchaki, one of the most illustrious Bible and Talmud commentators, who lived in France in the early part of the second millennium CE) interpreted this verse in a way that connects human dignity to God's dignity: "It is an affront to the King in Whose image Man is created", hence the dignity of God requires the dignified burial of man, even if one who had sinned and was executed. Accordingly, it was determined that "whosoever lets his dead lie overnight transgresses a negative commandment", unless he is "kept overnight for the sake of his honor, to fetch him a coffin or a shroud" (mSanhedrin 6, 7). And note that the Talmud (TB Gittin 61a) says that the "dead of the heathen are buried along with the dead of Israel", which means that the commandment of burial applies to Jews and non-Jews alike. (See the ruling by the late Rabbi Shlomo Goren, who served for many years as the IDF's Chief Rabbi, and as the Chief Rabbi for Israel, with regard to the burial of non-Jewish soldiers in military cemeteries (Trumat Hagoren, vol. II,  Siman 79 (2012) (Hebrew); Beoz Uvetaatzumot: An Autobiography, 152-153 (2013) (Hebrew)).

 

14.       Returning to Israeli Law, the right of the deceased and the deceased's family to dignity is broad in scope. It spans issues such as "tending the grave" or choosing the form and content of the inscription on the garvestone (see also HCJFH 3299/93 Wechselbaum v. Minister of Defence [80]). The duty to hand over the dead person's body to the relatives for burial derives therefrom.

 

            Indeed, in analyzing reg. 133(3), one cannot ignore that the dignity of the dead also applies to the burial of terrorists who had committed serious killing rampages. However, from a human-dignity perspective, and in the spirit of the Jewish law position—as shall be presented below—bringing the dead to proper burial expresses the values of the State of Israel as a Jewish and democratic state. These values are not diminished by the deceased's abject acts, nor do they distinguish between friend and foe, Jew and gentile. It is worth noting that international law, too—e.g., art. 17 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 1949, mentioned above (para. 10)—attaches great importance to burying the  dead, even though they had fought in the enemy's ranks prior to their death. According to the ruling of the late Rabbi Shaul Yisraeli (the Israel Prize laureate for Judaic Studies, head of the Merkaz HaRav Yeshiva and member of the Chief Rabbinate Council, who died in 1995), Jewish Law attributes great weight to the provisions of international law as regards the law of war:

 

And therefore, one has to see the agreement of the nations that war is one of the legal means, as long as the warring nations observe the accepted custom among nations with regard to war… and from now we will say that the prevailing law between countries also stems from agreement between the people of those countries, and although it concerns matters of life and death, their agreement is valid. And therein lies the foundation of the legality of war (Amud Hayemini, Part 16, Chapter 5 (1992)).

 

The Halachic term Dina d'malkhuta dina [the law of the land is law] thus also applies in the realm of relations between the state and the international community, and imposes upon the State of Israel a duty to act in compliance with the norms anchored in the law of war, including paying last respects to enemy dead.

 

            Beyond the weight that Jewish law accords to the provisions of international law in this context, Jewish law has its own deep, independent, ancient roots in regard to the duty to bury enemy dead. Thus, for example, we are told that after the Israelites returning to their land defeated the Canaanite kings who fought them, Joshua ordered the burial of the enemy's dead that very day (Joshua 8:29; Joshua 10:27). The book of Ezekiel, too, says (39:11) with respect to the Gog and Magog war to be waged at the end of the days, "And it shall come to pass in that day, that I will give unto Gog a place there of graves… and there shall they bury Gog and all his multitude: and they shall call it The valley of Hamongog". Based on the precedent set by Joshua, Nachmanides ruled that the general duty to bury the dead also extends to fallen enemies. Rabbi Shlomo Goren, who, as we said, served as the first IDF Chief Rabbi, wrote this on the subject:

 

During my service in the IDF, we set up special burial units whose role was to see to the identification and burial of fallen enemies in wartime. This is consistent with what we said at the outset, that the words of  Scripture, "for in the image of God made he man" (Genesis 9:6), hold true for any human, with no distinction between nations and races (Meshiv Milchama, vol. I, 40 (2^nd ed., 1994) (Hebrew)).

 

We shall end with the responsum of Rabbi Nathan Ortner, who served as the Rabbi of Lod at the time, to a question put to him by an IDF soldier during the 1982 Lebanon War. That soldier said that his company had hit a Syrian tank and killed the soldiers in it, and wanted to know whether he was under religious obligation to bury the Syrians who had fought the IDF soldiers "and wanted to destroy us". After an extensive discussion, the Rabbi determined, with reference to Nachmanides's position presented above, that various nuances differentiated between the existing halakhic approaches—but that all of them recognized the duty to bury fallen enemies. Whether the duty originated in the Bible or with the rabbis, the rule is that the enemy's fallen must be buried, certainly when their bodies lie within the Land of Israel. (Nathan Ortner, Burying Enemy Dead, 4 Techumin 97 (1983) (Hebrew); see also Shlomo Brody's article on burying the body of the terrorist who staged the 2013 attack at the Boston marathon, Shlomo Brody, Even Criminals Rest in Peace, Tablet (May 9, 2013)). 

 

            Thus, Israeli Law, international law and Jewish Law have stated their cases. What emerges is that the general purpose of reg. 133(3) of the Defence Regulations strives to minimize the violation of the dignity of the terrorist and his relatives, thus seeking to restrict the authority of the Military Commander to order the burial of the body as he sees fit in terms of the place and conditions of burial.

 

15.       Another general purpose derived from the State's fundamental values is the value of "redemption of captives". Whether this is an integral component of "state security" or not, it is hard to question the significance accorded to this value within Jewish tradition and within the Israeli ethos. As aptly described by Deputy President M. Cheshin (even if his interpretative position remained the minority opinion in the Does case [48]):

 

The commandment of redemption of captives—a commandment of the utmost order—was instituted for good reason, since all of Israel (and for our purposes not only Israel) are responsible for one another. An army's strength lies in the brotherhood of its combatants, and this brotherhood is monolithic when battle comes and a combatant falls captive in enemy hands. As in the oath of the Three Musketeers, the one that Alexandre Dumas put in their mouth, "Tous pour un, un pour tous", a combatant will fight knowing that he is not alone, and that his friends will come to his rescue when trouble arrives. We are ordered and we are adamant not to abandon an injured person in the field and, as with an injured person, we will not rest until the release of our captives from their captivity. Combatants are akin to mountain climbers tied to each other by rope and fate, and a climber whose grip has failed and whose body is hurled into the abyss will be saved by his comrades (p. 747).

 

Indeed, as Justice I. Englard noted at the time (HCJ 794/98 Obeid v. Minister of Defence [81], 776-777):

 

It has been held as a matter of halakha in Shulchan Aruch, Yoreh De'ah, 252:1 that “There is no greater commandment than the redemption of captives,” and that:

”Whosoever ignores the redemption of captives transgresses against thou shalt not harden thine heart (Deut. 15:7), and nor [shalt thou] shut thine hand (Deut. 15:7), and neither shalt thou stand against the blood of thy neighbor (Lev. 19:16) and [the other] shall not rule with rigor over him in thy sight (Lev. 25:53) and neglects the commandment of thou shalt open thine hand wide unto him (Deut. 15:8), and the commandment of that thy brother may live with thee (Lev. 25:36) and thou shalt love thy neighbor as thyself (Lev. 19:18) and deliver them that are drawn unto death (Proverbs 24:11), and many such things (ibid., sec. 2).

It has also been ruled that “To delay the redemption of captives by even a moment, where it can be expedited, is akin to spilling blood” (ibid., sec. 3).

 

16.       Jewish law attaches particular importance to the "redemption of captives" in the sense of bringing warriors to burial, beyond the general value of preserving "people's dignity", which I have pointed out above. Thus, for example, Rabbi Shlomo Zalman Auerbach, one of the greatest decisors of Jewish Law in the 20^th century, determined that even if  saving a life overrides the whole of the Torah—and hence soldiers should seemingly not be put at risk in a mission to extract fallen soldiers—"the blow to the morale of soldiers who see that if they fall, they would lie by the wayside with no one to care for them, is an important factor in the fighting spirit and thus constitutes saving a life" (Yehuda Zoldan, Shevut Yehudah ṿe-Yiśraʼel: Erets Yiśraʼel -- Gush Ḳaṭif, Manhigut ṿe-Tsava, Tsibur ṿe-hHevrah, Chap. 21(B)(4) (Eyal Fishler, ed., 2007)(Hebrew)). On a different, yet not unrelated issue, Rabbi Shlomo Goren ruled that the Sabbath may be violated in order to evacuate soldiers' bodies from battlefield, since "leaving fallen combatants on battlefield undermines combatants' morale" and "considering the particular emotional sensitivity we have toward our fallen sons" (Rabbi Re'em Ha'Cohen, Responsa Badei HaAron: Answers in Current Matters, part 5 (2013) (Hebrew)). In interpreting reg. 133(3) of the Defence Regulations as regards the burial of the dead and conducting negotiations for the redemption of captives and fallen individuals, we must therefore also consider these essential Jewish and Israeli values.

 

17.       The above suggests that a certain conflict arises among the various purposes of reg. 133(3) of the Defence Regulations, and hence one must proceed to the third and final stage of the interpretative process—distilling the ultimate purpose of the regulation after balancing the conflicting purposes, while keeping within the bounds of the language. In this stage, "account shall be taken, inter alia, of the relative importance of the violated right, the extent of its violation and the overall circumstances of the case" (the Manaa case [14], para. 47).

 

            As noted, burial of fallen enemies—terrorists or regular soldiers—by the Military Commander, instead of handing them over to their relatives, violates the right of the dead and their relatives to dignity. However, we should bear in mind that the authority granted to the Military Commander incorporates protection of the core of this right. It instructs him to bring the bodies to proper burial, and does not authorize him to hold them under inappropriate conditions. Furthermore, the burial of the bodies in Israel as a tool for facilitating negotiations for the repatriation of civilians and fallen soldiers held in enemy hands is temporary in nature. This is not, therefore, a question of denying the murderers a family burial plot, but rather delaying its establishment until the relevant security considerations have dissipated (whether because negotiations have ripened, or for other reasons).

 

            As opposed to this limited violation stand considerations that lie at the core of the purposes underlying reg. 133(3) of the Defence Regulations—namely, protecting state security and public safety from the threat of terrorism. Returning the civilians held in Hamas captivity, Avera Menigstu and Hisham al-Sayed, and bringing back the bodies of fallen IDF soldiers Lieutenant Hadar Goldin of blessed memory and Staff Sergeant Oron Shaul of blessed memory  for burial in Israel, themselves fall within the compass of these purposes. No less important, holding the bodies is significant due to its potential effect on the results of future negotiations—results that might have far-reaching implications for the security of the Israeli public at large (see, for example, the words of Justice E. E. Levy in HCJ 914/04 Victims of Arab Terror International v. Prime Minister [4]; HCJ 6063/08 Shachar v. Government of Israel [82]).

 

            The proper balance between these purposes thus makes it clear that reg. 133(3) of the Defence Regulations seeks to authorize the Military Commander to regulate the proper burial of fallen enemies—be they terrorists or regular soldiers—when considerations of state security and public safety preclude their delivery to relatives. We would emphasize that the authority granted by the regulation is not restricted to situations involving some practical obstacle to handing over the corpses. The regulation does indeed seek to prevent the desecration of enemy bodies, but its security dimension outweighs the humanitarian one. The legislator wished to grant the Military Commander authority to weigh a large array of security considerations and decide the burial issue based on these considerations, despite the limited violation of the dignity of the dead and their relatives. Thus, for example, President A. Barak ruled in the Barakat case (pp. 5-6) that the Military Commander is authorized to order the date and manner of burial of "a person whose death was security related"—even if not within the framework of a violent confrontation with the security forces—if he believed that this was necessary in order to prevent an incendiary outburst of emotions and disturbance of public order:

 

The Military Commander has the authority to order that the funeral of a person whose death was security related will take place at night, with the participation of family members only. This authority originates in the general powers of the Military Commander to maintain order and security in the Territory. It is also anchored in the provisions of reg. 133(3) of the Defence (Emergency) Regulations, 1945.

 

Even more important to our case is the court ruling in the Abbas case [37], where President M. Shamgar determined that there had been no flaw in the discretion exercised by the Military Commander when he made the return of the body of a Hamas terrorist conditional upon revealing the burial spot of soldier Ilan Saadon of blessed memory, who was murdered by the organization's terrorists. 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." (HCJ 3132/15 Yesh Atid v. Prime Minister [74], para. 7 of my opinion )).  Hence, in the Abbas case, the Military Commander's authority to weigh considerations of the kind that lie at the heart of these proceedings was recognized.

 

            Thus, even if these things are not explicitly written in reg. 133(3) of the Defence Regulations, and certainly not in detail, purposive interpretation of the regulation makes it clear that the Military Commander is authorized to order the temporary burial of enemy dead for considerations of security, while showing respect to the dead. Indeed, contrary to the matter debated in the Jabareen [42], the Military Commander does not seek to rely on a general authorization to maintain order that makes no concrete reference to the possibility of preventing—or restricting—burial. What we have here is a dedicated provision regarding burial, in which case there is nothing to prevent us from resorting to interpretation in order to appraise its full scope (see and compare HCJ 10203/03 Hamifkad Haleumi v. Attorney General [83], paras. 30-33 per President M. Naor; HCJ 5100/94 Public Committee against Torture [17], 835-839).

 

18.       Before concluding the discussion on the question of authority, I will briefly address several issues. One concerns the primary arrangements rule, which states that "in matters falling within the framework of ‘primary arrangements', an administrative authority may only act with the clear authorization from the legislature" (Yoav Dotan, Primary Arrangements and the New Legality Principle, 42 Mishpatim 379, 411 (2012) (Hebrew)). In our case, the legislator was the one to outline the basic policy, determining that the Military Commander would be able to order—based on security considerations—the place, time and manner of burial for enemy dead. In the absence of complexity or extraordinary social disagreements, the implementation of the policy in the cases before us—the burial of terrorists' bodies, for security considerations relating to negotiations for the return of abductees and fallen soldiers—cannot therefore be seen as a primary arrangement (see and compare the Abu Arfa case [34], paras. 57-63 per Justice U. Vogelman; for general comments on the difficulty of identifying primary arrangements, see, for example, HCJ 4491/13 Academic Center for Law and Business v. State of Israel [84] para. 19, per President A. Grunis). In any case, in view of the said explicit authorization arising from the purpose of reg. 133(3) of the Defence Regulations and its language, the primary arrangements rule—even if assumed relevant to our case—cannot influence the outcome (ibid, para. 21; the Manaa case [14], paras. 14-15). I would also add, beyond what is required, that the constitutional layer that some attribute to this rule (ibid, paras. 22-25) has no bearing on the status of reg. 133(3) of the Defence Regulations, which comes under the aegis of the preservation of laws provision.

 

19.       Another issue has to do with the possible comparison with the "bargaining chips" case, in which this Court gave sec. 2 of the Emergency Powers (Detention) Law, 5739-1979, a restrictive interpretation, determining that it did not authorize the Minister of Defence to order the detention of a person who poses no danger—even if this might facilitate negotiations for the release of captives (the Does case [48]). I will say, at the outset, as my friend, Justice Y. Danziger also noted (in para. 25 of his opinion), that comparing the force of the injury to the dignity and freedom of an individual held in custody with that involved in burying a terrorist in a way that does not suit his wishes, poses a difficulty. Since the interpretation of the norm in question is largely influenced by the nature of the right being violated and the degree to which it is violated, this difference carries an interpretative significance that cannot be ignored. Furthermore, the restrictive interpretation preferred in the Does case is anchored in the purposes of the Emergency Powers (Detention) Law, reflecting an essential distinction between the detention of a person who poses a threat to state security and the detention of another who does not, himself, pose any threat. On the other hand, reg. 133(3) of the Defence Regulations—which, by its very nature, focuses on environmental security considerations, since the dead no longer pose any danger—does not provide any basis for a random distinction between temporary burial and permanent burial, or between burying the soldiers of the enemy's regular army and burying terrorists. The desire to expand the protection of a dead person's dignity has merit, but cannot serve as a basis for an arbitrary outcome that makes random distinctions between different situations—and in fact requires the legislature to pedantically specify every scenario that the Military Commander might encounter, even if it even if it is not substantively unique. One must keep in mind, as the majority justices in the Even Zohar case emphasized:

 

The status of the right to property as a constitutional right casts interpretative "rays of light"  toward the old legislation preceding the Basic Law, including the Defence Regulations enacted by the Mandatory legislator in 1945. However, the effect of those interpretative "rays of light" is limited and confined to the margins of the old legal provision, and they do not have the power to turn it on its head and change its deep essence (para. 10, per Justice A. Procaccia [emphasis added]; see and compare paras. 5 and 10 per Deputy President S. Joubran).

 

In the absence of purposive anchoring of the distinction between permanent and temporary burial, or between security considerations relating to disturbances during burial ceremonies and ones relating to the repatriation of civilians held by the enemy, the substance of reg. 133(3) of the Defence Regulations cannot be changed, despite the change that has taken place in the status of the "dignity of the dead".

 

20.       I will conclude the discussion on the question of authority by joining the result arrived at by my colleague Justice Y. Danziger, that "neither international humanitarian law nor international human rights law establish a statutory prohibition on holding bodies in an armed conflict," (para. 37 of his opinion)—certainly when required for a specific, real security need. This being the case, and considering the applicability of the Defence Regulations within both the State of Israel and the Territory (see, for example, HCJ 358/88 Association of Civil Rights in Israel v. Central District Commander [9], 532-533), there is nothing to support the distinction between bodies of terrorists who were residents of the Territory or residents of Israel—and the authority of the Military Commander extends to all of them.

 

            I shall only note that the rulings of the European Court of Human Rights mentioned by my colleague (Maskhadova v. Russia [91]; Sabanchiyeva v. Russia [90]) reinforce this conclusion, at least as concerns bodies of terrorists who were residents of Israel. The said rulings determined that the Russian authorities' decision not to return bodies of terrorist to their families disproportionately violated the right to privacy and family life (anchored in sec. 8 of the European Convention on Human Rights ( ECHR)). However, the Court's reasoning actually highlights the substantial difference between the Russian policy, which was rejected, and reg. 133(3) of the Defence Regulations, which we are now debating. First, in discussing the arguments made by the family members, the European Court noted (ibid, §138) that the Russian arrangement was particularly harmful:

 

In that it completely precluded them from any participation in the relevant funeral ceremonies and involved a ban on the disclosure of the location of the grave, thus permanently cutting the links between the applicants and the location of the deceased’s remains.

 

That is, the violation of rights is compounded, since the decision of the Russian authorities completely and irreversibly severed the link between the family members and the graves of their loved ones, excluding the families from the funeral ceremonies and withholding the location of the grave from them. These characteristics are clearly irrelevant to Israeli Law, which does not rule out the family's participation in the burial, permits the disclosure of the burial location, and certainly does not completely sever the tie between the family and its beloved deceased. Moreover, we should  recall that the burials in our case are temporary in nature, such that the terrorists' bodies will be returned to the relatives in the future, whether as part of an exchange arrangement or after such an arrangement will no longer be on the agenda.

 

            The ECtHR rulings, whose result was based on the sweeping, disproportionate nature of the Russian arrangement, also demonstrate the importance of the distinction between authority and discretion, showing that the question of authority is one thing (as it was indeed found to be in the Russian context) and the question of discretion is another. Furthermore, they suggest that the arrangement under reg. 133(3) of the Defence Regulations meets the tests of reasonableness and proportionality. As the European Court emphasized (ibid, § 144 146; see also paras. 233-238 in the Mashkhadova case) –  

 

The relevant official did not take the decision using a case-by-case approach and included no analysis which would take into account the individual circumstances of each of the deceased and those of their family members […] that was so because the applicable law treated all these questions as irrelevant, the decision of 15 May 2006 being a purely automatic measure […] Having regard to the automatic nature of the measure, the authorities’ failure to give due consideration to the principle of proportionality, the Court finds that the measure in question did not strike a fair balance between the applicants’ right to the protection of private and family life, on the one hand, and the legitimate aims of public safety, prevention of disorder and the protection of the rights and freedoms of others on the other.

 

In other words, the disproportionality of the decisions by the Russian authorities stems from the sweeping nature of the domestic legislation, which entirely rules out the return of terrorists' bodies to their families, automatically and without regard for the concrete circumstances,  and even denies them "some kind of opportunity for paying their last respects to the deceased person" (ibid, § 143). Expressio unius est exclusio alterius: there is nothing inherently wrong about the authorities burying terrorists' bodies instead of handing them over the relatives, as long as the authority is exercised on a case-by-case and proportional basis, while examining the overall considerations in the matter. As noted, the policy adopted by the Ministerial Committee on National Security Affairs, and the concrete decisions of the Military Commander are based on a case-by-case examination of the terrorist's identity and the circumstances of the event, and do not inherently rule out the family's participation in the burial ceremony. The rule is accompanied by an exception – an exception accompanied by case-by-case examination. This being the case, and in complete contrast to the Russian arrangement, these are proportional decisions in which there is no cause to intervene.

 

21.       We thus find that the Military Commander is authorized to order the place, time and manner of burying the bodies of fallen enemies—a burial that is often temporary in nature—when security considerations so dictate. Obviously, in exercising his discretion, the Military Commander must strike a balance between these considerations and the right to dignity of the dead and their family. However, as clarified with regard to other components of the Defence Regulations, authority is one thing and discretion is another (HCJ 1125/16 Mari v. Commander Military Forces in the West Bank [85], para. 20 per Justice M. Mazuz); HCJ 7040/15 Hamed v. Military Commander in the West Bank [86], para. 23 [hereinafter: the Hamed case]; the Alshuamra case, para. 17), and the limitations on how discretion is to be exercised do not blur the limits of the authority.

 

22.       Having reached the conclusion that the Military Commander is authorized to order the burial of terrorists' bodies for security considerations related to negotiating the return of civilians and fallen soldiers, we must now examine whether the concrete decisions in the matter of the Petitioners before us, with the general policy underlying them, meet the test of reasonableness and proportionality.

 

            I believe that the exercise of authority by the Military Commander, in accordance with the Ministerial Committee's policy, does not overstep the limits of reasonableness—whose bounds can be gauged, at least in the context of the violation of fundamental rights, using the proportionality tests as well (for a discussion on the relationship between reasonableness and proportionality (see HCJ 794/17 Ziada v. Commander of the IDF Forces in the West Bank [87], para. 118 per Deputy President S. Joubran, and the sources cited there). In any case, there is a difference between the reasonableness test and the proportionality test, and between the proportionality test in general and the proportionality test under sec. 8 of Basic Law: Human Dignity and Liberty). Thus, the material presented by the Respondents, both in their pleadings and in the course of the hearing held ex parte, suggests that the burial policy is based on assessments by security agencies regarding its possible contribution to facilitating negotiations for the return of the civilians and the bodies of fallen IDF soldiers held by Hamas. The Ministerial Committee reached its decision following several discussions, in which it was presented with the assessments of the Israel Security Agency and the Coordinator for Prisoners and Missing Persons in the Prime Minister's Office, and heard the positions of the National Security Council and the IDF. These assessments suggest that the burial in Israel of "Hamas affiliated" terrorists, or terrorists who have committed "a particularly exceptional terrorist incident" of clear symbolic significance, would help further negotiations for the return of civilians Avera Mengistu and Hisham a-Sayed, and the bodies of fallen IDF soldiers Lieutenant Hadar Goldin of blessed memory and Staff Sergeant Oron Shaul of blessed memory,  even if the contacts for an exchange agreement have yet to reach an advanced stage. The Respondents also noted that "the political echelon holds, and will hold, periodic evaluations of the situation on this issue"—as required due to the violation of the dignity of the dead and their relatives (compare with the Hamed case, para. 27).

 

            The concrete decisions that are the subject matter of the petitions before us are also based on an appropriate factual foundation regarding the organizational affiliation of the terrorists, the "symbolism" of the terrorist event in which they died—from the perspective of the terrorist organizations—or both. Thus, Musbah Abu Sabih, the terrorist who murdered a Border Police officer and an Israeli civilian in October 2016, is identified with the Hamas organization (HCJ 285/17), like the sons of Petitioners 2 and 3 in HCJ 8503/16 (the first, who was involved in an attempted terrorist attack in July 2016, and the other, who is among those who murdered Rabbi Michael Mark of blessed memory in the same month), and the son of Petitioner 7 in HCJ 4466/16 (who carried out a suicide bombing in Jerusalem in April 2016). As for the body of Petitioner 4's son in HCJ 8503/16, it has been clarified that it is being delayed due to the dire circumstances of the terrorist attack he committed—the murder of the girl Hallel Yaffa Ariel of blessed memory in her sleep, in June 2016—and the "standing" this terrorist had gained among the terrorist organizations. Finally, the decision in the matter of terrorist Fadi Qunbar (HCJ 6524/17), who murdered four soldiers in a vehicle-ramming terrorist attack committed in January 2017, rests on the dire circumstances of the attack and on Hamas claiming responsibility for it. As noted, according to the assessments of the security establishment, Hamas attaches greater importance to the bodies of its people, or to bodies of terrorists who committed particularly severe terrorist acts—and so holding these bodies effectively promotes negotiations for the return of the civilians and the bodies of the fallen soldiers held by the organization.

 

            In these circumstances, there is no real doubt that the terrorists' bodies are delayed for a proper purpose—facilitating the repatriation of the civilians and fallen IDF soldiers held by Hamas, and influencing the negotiation in the matter in such a way as to minimize harm to the state's security and its citizens' safety—and not as an arbitrary punitive measure.

 

23.       Moreover, the factual foundation presented to us suffices to show the reasonableness of the measures that the Military Commander adopted—or intends to adopt—in accordance with the policy of the Ministerial Committee, in order to further the said purpose. However, the link between the measures and the purpose might weaken, even considerably, as the circumstances change. As noted, the bodies with which the petitions before us are concerned have been held by the State of Israel for quite a while – as long as 20 months (HCJ 4466/16). Indeed, the security considerations underlying the Ministerial Committee's policy and the Military Commander's decisions dictate that no rigid "expiry date" be set whereupon the Respondents would have to return the terrorists' bodies to their families. Furthermore, past experience teaches us that Rome was not built in a day, nor the bridge to an arrangement, and that it may take more than a year for deals to mature for the exchange of prisoners or bodies of fallen individuals (see, for example, HCJ 7523/11 Almagor Terror Victims Association v. Prime Minister [88], and HCJ 9446/09 Karman v. Prime Minister [89], regarding the repatriation of Israeli soldier Gilad Shalit). At the same time, clearly one cannot condone the unlimited holding of terrorists' bodies, and the competent authorities must frequently review the changing circumstances, both relative to the general policy (i.e., the "concreteness" of a possible exchange deal), and relative to the "value" of keeping specific terrorists (i.e., their current importance in Hamas' eyes). Thus, without establishing a definite timeframe, it is possible to determine that, at this stage, the measures taken by the Military Commander in order to further the proper purpose of the policy underlying his actions fall within the bounds of reasonableness—subject to renewed periodical examination of the issue, as the Respondents have undertaken to do.

 

            In view of the security establishment's evaluation of the possible contribution of the policy in question to the security (and moral) interests involved in the repatriation of the civilians and fallen IDF soldiers, no real alternative has been presented to this policy and its implementation in the cases before us, with minimal violation of the dignity of the dead.

 

            It should be emphasized that the decision of the Ministerial Committee on National Security Affairs instructs that terrorists' bodies be returned to their family members, except in relatively rare situations. Reality also testifies to this: The large majority of terrorists killed in recent years during terrorist attacks have been returned to their families, whereas the petitions before us relate to only six bodies. In other words, the Respondents have avoided adopting a comprehensive, deleterious policy of holding terrorists' bodies, and have sufficed with an individual arrangement that attributes weight to the organizational affiliation of each terrorist and the nature of terrorist attack committed. Moreover, the Ministerial Committee and the Military Commander have ordered the burial of the relevant bodies—as opposed to holding them in some other manner that would be less respectful of the dead.

 

            Incidentally, and to complete the Jewish Law perspective, we should note a ruling made during the War of Independence. The first Sephardi Chief Rabbi of the State of Israel, Rabbi Uziel, addressed a situation where, in the midst of war and due to the constraints of the hour, a soldier was buried in the Ayelet Hashachar kibbutz, whereas his family and center of life were in Tel Aviv. It was ruled that, under the circumstances, this burial could be considered temporary, and the body could be transferred to the Nachalat Yitzhak cemetery (Ben Zion Meir Hai Uziel, Pisqei Uziel: BiShe'elot HaZman, 36 (1973) (Hebrew)). Despite the salient and clear differences between this case and ours, this serves to reinforce the obvious. A temporary grave fulfils the requirement, be it even preliminary, of the duty to bury the dead. Such is the case even if it causes a violation to the dignity of the dead and his family that justifies the transfer of the body at a later stage.

 

24.       Finally, the Military Commander's decisions also meet the cost-benefit test. As I noted above, we are concerned with decisions that  present a relatively minor violation of the right of the dead and their families to dignity, and not to the core of the right. What we are concerned with is essentially temporary burial that does not sever the link between the terrorists' families and their dead, and does not necessarily prevent them from visiting the temporary graves or even taking part in the funeral (subject, of course, to relevant security considerations). The proper burial of the terrorists, in accordance with their religious customs, and in a way that allows future identification of their bodies, further minimizes the violation of their dignity. Therefore, in weighing this violation against the substantial security purposes underlying the policy, by virtue of which the Military Commander's decisions were made, the scales tip, in principle, in favor of the latter.

 

            One should bear in mind that the policy adopted by the Ministerial Committee on National Security Affairs, in light of which the Military Commander acted—and intends to act—is restricted and limited. It only relates to the bodies of terrorists identified with Hamas, or ones whose brutal actions earned them "value" in the eyes of this terrorist organization. Furthermore, the Military Commander's decisions concern terrorists who went on blind, brutal killing sprees—even if, fortunately, they were unable in some cases to put their evil plans into practice (see and compare, for example the Abu Hdeir case, para. 33 per Deputy President E. Rubinstein). As long as there is real cause to assume that the Military Commander's decisions are effective—in the sense that they can further the security interests involved in repatriating the civilians and the bodies of fallen soldiers held by Hamas, even if not in any immediately apparent way—they fall within the bounds of reasonableness and proportionality, and we should not intervene.

 

25.       In closing, purposive interpretation of reg. 133(3) of the Defence Regulations shows that the Military Commander holds broad authority to order the burial of bodies of enemy terrorists or fallen soldiers, based on considerations of protecting the State's security and the safety of its citizens, while respecting the dignity of the dead. There is no doubt that repatriating civilians and fallen IDF soldiers held by the enemy, and minimizing the related security cost, lie at the heart of these considerations. Therefore, the Military Commander is authorized to order the burial of terrorists' bodies in order to further that purpose. The distinction between the sphere of authority and that of discretion is essential. Even when there is justification for limiting the way the authority is exercised, one cannot simply ignore, at the stroke of a pen, the language of the authorizing norm and its purposes, and give it restrictive arbitrary "interpretation". In these cases, the "rays of light" radiated by the Basic Laws will illuminate the discretionary sphere, but they will not change the basic nature of the authorizing norm and undermine its purposes.

 

            The material presented to us suggests that the Military Commander’s decisions before the Court are based on a full, up-to-date, factual foundation, and meet the tests of reasonableness and proportionality. Thus, were my opinion accepted, we would determine  that the Military Commander is authorized to continue to act reasonably and proportionately, within the bounds of his authority, to order the burial of terrorists' bodies.

 

26.       Considering the importance of these issues, and to avoid misunderstanding in a very nuanced issue, I will summarize my position as it relates to the discretionary plane and to the exercise of the authority. I will first state the obvious, which might fall between the stools and the table of terrorism: The desirable situation would be to return the bodies of the dead, including terrorists, to their families—in accordance with the rule laid down by the Ministerial Committee, and without exceptions. However, the abhorrence and brutality exhibited by terrorist organizations, who hold civilians and bodies of fallen IDF soldiers and demand a price not only for those held alive in their custody but for the dead as well, leave no other recourse. In this reality, which is also forced upon us, one has to walk a tightrope between achieving the objective of repatriating Israeli civilians and bodies of fallen IDF soldiers on the one hand, and on the other hand maintaining the dignity of the dead—be they even terrorists. And, of course, if the law recognizes the feelings of terrorists' relatives, then surely the cry of the families of the living and the dead held by Hamas will not let us rest. In other words: acknowledging reality, listening to the voice of the living who have not returned home and to the voice of the blood of our brothers who have not been brought to rest, and upholding the basic principles of the State of Israel as a Jewish and democratic state.

 

            Of particular importance, in this regard, is the exact delineation of the Respondents' policy, according to which—as the attorney for the State has made clear—holding terrorists' bodies constitutes a rare exception. That is, even bodies of terrorists falling under both relevant categories will be buried temporarily only against a background of concrete negotiations for the repatriation of civilians and the bodies of fallen soldiers held by the terrorist organizations. The transfer of bodies should not be prevented in anticipation of what the future might bring. The security establishment is supposed, as it has done in this case, to exercise case-by-case discretion with regard to facilitating negotiations for the return of the Hamas-held civilians and fallen IDF soldiers. This is a very delicate matter. We should not turn a blind eye to the nature of negotiations in such sensitive matters between the State and a terrorist organization, even by means of a third party. A terrorist organization might declare that there is no negotiation in progress, where in reality this is not the case but only another stage in the negotiation. What matters is that if negotiations are indeed nonexistent, and no concrete contacts of any kind are underway for a deal, the bodies are to be returned. However, as long as there is a chance that is neither hypothetical nor slim of further  negotiations, there is no obligation to return them. Another important point is, as noted above, that the dignity of the dead requires their burial. A situation in which terrorists' bodies are held over time in some form other than burial—be it even, as in the cases before us, by request of the families—might excessively violate the dignity of the dead and the principles that are binding under international law. In this case, there is no need to quantify and draw time limits, but, as noted, the more time that elapses, the greater the need to bury the corpse, and the time dimension also constitutes a consideration with regard to its time of return. Again, there are no set formulas. This depends on the contacts, the negotiations, and the point that they have reached. In our case, based on the material submitted, it seems that this how the Respondents are acting in this case—although, as I see it, it is time to bring the bodies being held to temporary burial. Of course, the Ministerial Committee on National Security Affairs and the Military Commander must periodically review the existing policy—and how it is implemented in specific cases—and avoid the burial of bodies in Israel when this does not contribute to facilitating negotiations for the repatriation of the Hamas-held civilians and fallen soldiers.

 

27.       All that remains is to express the hope that a burst of humaneness—or at least the Hamas's interest—will overtake the madness of terrorism and allow the dead to rest in peace. If exercising the authority under reg. 133(3) of the Defence Regulations can accelerate the safe return of civilians Avera Mengistu and Hisham a-Sayed to their families, and the return for interment in Israel of IDF combatants Lieutenant Hadar Goldin of blessed memory and Staff Sergeant Oron Shaul of blessed memory, I shall be content. I would deny the petition without an order for costs. In my view, it would be right to rescind the interim order and bring the two remaining bodies to temporary burial as soon as possible, in such place as shall be determined by the Military Commander.

 

 

 

The petitions are granted by the majority opinion of Justices Y. Danziger and G. Karra, contrary to the dissenting opinion of Justice N. Hendel, according to which the petitions should be denied.

 

Given this day, 26 Kislev 5778 (December 14, 2017).

 

 

 

 

HCJ 781-15

 

 

Petitioners:	Etai Arad Pinkas Yoav Arad Pinkas Anon. Anon. Anon. Anon. The Association of Israeli Gay Fathers Tammuz International Surrogacy Agency Ltd.

v.

 

Respondents:	1.  Committee for Approval of Embryo Carrying Agreements under the Embryo Carrying Agreements (Agreement Approval & Status of the Newborn Child) Law, 5756-1996
	2. The Knesset

 

 

 

The Supreme Court sitting as High Court of Justice

Before: President M. Naor, Deputy President (emeritus) E. Rubinstein, Deputy President S. Joubran, Justice E. Hayut, Justice H. Melcer.

 

Petition for an Order Nisi

(Aug. 3, 2017)

 

 

Israeli Supreme Court cases cited:

 [1]      HCJ 8665/14 Desta v. Knesset, (Aug. 11, 2015) https://versa.cardozo.yu.edu/opinions/desta-v-knesset

[2]       HCJ 2390/96 Karsik v. State of Israel, Israel Lands Administration, (Feb. 9, 2009) https://versa.cardozo.yu.edu/opinions/karsik-v-state-israel

[3]       CFH 5161/03 E.S.T. Projects and Human Resources Management Ltd. v. State of Israel (Sept. 1, 2005).

[4]       HCJ 466/07 Galon v. Attorney General, (Jan. 11, 2012) https://versa.cardozo.yu.edu/opinions/gal-v-attorney-general-summary

[5]       HCJ 5771/12 Moshe v. Committee for Approval of Embryo Carrying Agreements under the Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) Law, 5756-1996, (Sept. 18, 2014) https://versa.cardozo.yu.edu/opinions/moshe-v-board-approval-embryo-carrying-agreements-under-embryo-carrying-agreements-law

[6]       HCJ 3166/14 Gutman v. Attorney General, (March 12, 2015).

[7]       HCJ 2311/11 Sabah v. Knesset, (Sept. 17, 2014).

[8]       HCJ 1213/10 Nir v. Knesset Speaker, (Feb. 23, 2012).

[9]       HCJ 2458/01 New Family v. Committee for Approval of Embryo Carrying Agreements, IsrSC 57(1) 419 [2002].

[10]     HCJ 6665/12 E-Cig Ltd. v. Director General of the Ministry of Health, (Dec. 3, 2014).

[11]     LFA 1118/14 Anon. v. Ministry of Welfare and Social Services, (April 1, 2015).

[12]     HCJ 4406/16 Association of Banks in Israel v. Knesset, (Sept. 29, 2016).

[13]     HCJ 3734/11 Davidian v. Knesset (Aug. 15, 2012).

[14]     HCJ 4885/03 Israel Poultry Farmers Association v. Government, IsrSC 59(2) 14 [2004] https://versa.cardozo.yu.edu/opinions/israel-poultry-farmers-association-v-government-israel

[15]     LCA 3145/99 Bank Leumi Ltd. v. Hazan, IsrSC 57(5) 385 [2003].

[16]     HCJ 6298/07 Ressler v. Israel Knesset, IsrSC 65(3) 1 [2012] https://versa.cardozo.yu.edu/opinions/ressler-v-knesset

[17]     HCJ 7052/03 Adalah Legal Center for Arab Minority Rights 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

[18]     HCJFH 10007/09 Gluten v. National Labor Court, IsrSC 66(1) 518 [2013].

[19]     HCJ 1078/10 Arad Pinkas v. Committee for Approval of Embryo Carrying Agreements (June 28, 2010).

[20]     HCJ 9134/12 Gavish v. Knesset, (April 21, 2016) https://versa.cardozo.yu.edu/opinions/gavish-v-knesset

[21]     HCJ 10662/04 Hassan v. National Insurance Institute,  (Feb. 28, 2012) https://versa.cardozo.yu.edu/opinions/hassan-v-national-insurance-institute

[22]     HCJ 6427/02 Movement for Quality Government in Israel v. Knesset, IsrSC 61(1) 619 [2006].

[23]     LFA 7141/15 A. v. B., (Dec. 22, 2016).

[24]     CFH 1892/11 Attorney General v. Anon., IsrSC 64(3) 356 [2011].

[25]     LFA 5082/05 Attorney General v. Anon., (Oct. 26, 2005).

[26]     CA 50/55 Hershkovitz v. Greenberger, IsrSC 9 791 [1955]. https://versa.cardozo.yu.edu/opinions/hershkovitz-v-greenberger

[27]     HCJ 11437/05 Kav LaOved v. Ministry of the Interior, IsrSC 634(3) 122 [2011].

[28]     HCJ 2245/06 Dobrin v. Israel Prisons Service, (June 13, 2016) https://versa.cardozo.yu.edu/opinions/dobrin-v-israel-prison-service

[29]     CFH 2401/95 Nahmani v. Nahmani, IsrSC 50(4) 661[1996] https://versa.cardozo.yu.edu/opinions/nahmani-v-nahmani-0

[30]     HCJ 4077/12 A. v. Ministry of Health, (Feb. 5, 2013) https://versa.cardozo.yu.edu/opinions/doe-v-ministry-health

[31]     A. & B., Prospective Adoptive Parents of a Minor v. Biological Parents, IsrSC 60(1) 124 [2005].

[32]     HCJ 3752/10 Amnon Rubinstein v. Knesset, (Sept. 17, 2014).

[33]     HCJ 5304/15 Israel Medical Association v. Knesset, (Sept. 11, 2016) https://versa.cardozo.yu.edu/opinions/israel-medical-association-v-knesset

[34]     HCJ 5239/11 Avneri v. Knesset, (April 15, 2015) https://versa.cardozo.yu.edu/opinions/avneri-v-knesset

[35]     LAA 4021/09 Tel Aviv Municipal Tax Administration v. Michel Marsiah Co., (Dec. 20, 2010).

[36]     LCA 8233/08 Kovashi v. Adv. Eyal Schwartz, IsrSC 64(2) 207 [2010].

[37]     CA 3213/97 Nakar v. Local Planning and Development Council Herzliya, IsrSC 53(4) 625 [1999].

[38]     HCJ 6728/06 “Ometz”— Citizens for Good Governance and Social and Legal Justice v. Prime Minister, (Nov. 30, 2006).

[39]     HCJ 1756/10 Holon Municipality v. Minister of the Interior, (Jan. 2, 2013).

[40]     CA 2449/08 Tuashi v. Mercantile Discount Bank Ltd., (Nov. 16, 2010).

[41]     HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Social Affairs, (Aug. 11, 1998) https://versa.cardozo.yu.edu/opinions/israel-womens-network-v-minister-labor-social-affairs

[42]     HCJ 1030/99 MK Oron v. Speaker of the Knesset, IsrSC 56(3) 640 [2002].

[43]     CA 4239/15 Dor Alon Energy Israel 1998 Ltd. v. State of Israel, Tax Authority, (March 29, 2017).

[44]     HCJ 4128/02 Adam Teva veDin – Israel Union for Environmental Defense v. Prime Minister, IsrSC 58(3) 503 [2004].

[45]     CA 420/83 Ashur v. Migdal Insurance Co. Ltd., IsrSC 44(2) 627 [1990].

[46]     HCJ 5087/94 Zabaro v. Minister of Health, (July 17, 1995).

[47]     CFH 2121/12 Anon. v. Dayan Urbach, IsrSC 67(1) 667 [2014] https://versa.cardozo.yu.edu/opinions/anonymous-v-orbach

[48]     CA 9183/09 Football Association Premier League Ltd. v. Anon., (May 13, 2012).

[49]     HCJ 1892/14 Association for Civil Rights in Israel v. Minister of Public Security, (June 13, 2017).

[50]     AAA 4105/09 Haifa Municipality v. Sephardic Jewish Community Association, Haifa, (Feb. 2. 2012).

[51]     HCJ 7245/10 Adalah – The Legal Center for Arab Minority Rights v. Ministry of Social Affairs, (June 4, 2013) https://versa.cardozo.yu.edu/opinions/adalah-%E2%80%93-legal-center-arab-minority-rights-israel-v-ministry-social-affairs

[52]     HCJ 6698/95 Ka’adan v. Israel Land Administration, IsrSC 54(1) 258 [2000] https://versa.cardozo.yu.edu/opinions/ka%E2%80%99adan-v-israel-land-administration

[53]     HCJ 142/89 Laor Movement v. Speaker of the Knesset, IsrSC 44(3) 529 [1990].

[54]     HCJ 2605/05 Academic Center for Law and Business, Human Rights Division v. Minister of Finance, IsrSC 63(2) 545 [2009] https://versa.cardozo.yu.edu/opinions/academic-center-law-and-business-v-minister-finance

[55]     HCJ 566/11 Mamet Megged v. Minister of the Interior, (Jan. 28, 2014).

[56]     HCJ 4769/95 Menahem v. Minister of Transport, IsrSC 57(1) 235 [2002].

[57]     HCJ 98/69 Bergman v. Minister of Finance,  IsrSC 23(1) 693 [1969] https://versa.cardozo.yu.edu/opinions/bergman-v-minister-finance

[58]     AAA 343/09 Jerusalem Open House for Gay Pride v. Jerusalem Municipality, IsrSC 64(2) 1 [2010] https://versa.cardozo.yu.edu/opinions/jerusalem-open-house-gay-pride-v-jerusalem-municipality

[59]     HCJ 2078/96 Vitz v. Minister of Health, (Feb. 11, 1997).

[60]     LAA 919/15 A. v. B., (July 19, 2017).

[61]     LCA 8821/09 Prozansky v. Layla Tov Production Co. Ltd., (Nov. 16, 2011) https://versa.cardozo.yu.edu/opinions/prozansky-v-layla-tov-productions-ltd

[62]     FH 25/80 Katashvili v. State of Israel, IsrSC 35(2) 457 [1981].

[63]     HJC 6665/12 A. Sig Ltd. v. Director General of the Ministry of Health, (3.12.2014).

[64]     HCJ 8893/16 Cabel v. Minister of Communication, (8.1.2017).

[65]     HCJ 5436/07 Movement for Quality Government in Israel v. National Authority for Religious Services, (May 5, 2010 and Nov. 11, 2010).

[66]     HCJ 8300/02 Nasser v. Government of Israel, (22.5.2012).

[67]     HCJ 625/10 A. v. Committee for the Approval of Embryo Carrying Agreements, (26.7.2011).

[68]     HCJ 3217/16 Israel Religious Action Center – The Movement for Progressive Judaism in Israel v. Ministry of Welfare and Social Services, (Sept. 17, 2017).

[69]     CA 488/77 A. v. Attorney General, IsrSC 32(3) 421 [1978].

[70]     HCJ 3872/93 Mitral Ltd. v. Prime Minister and Minister of Religion, IsrSC 47(5) 485 [1993].

 

 

PARTIAL JUDGMENT AND DECISION

Deputy President S. Joubran:

1.         The petition before us seeks to extend access to the Israeli surrogacy arrangement  primarily regulated by the Embryo Carrying Agreements (Agreement Approval & Status of the Newborn Child) Law, 5756-1996 (hereinafter: Agreements Law), such that it would also apply to same-sex couples and to single individuals, with or without a genetic link to the child.

2.         The petition was filed at the beginning of 2015, and two hearings were held before an expanded bench of this Court, and supplemental pleadings were submitted, such that the petition was ripe for decision. However, on July 17, 2017, Respondent 1 submitted a notice providing updated details concerning the Embryo Carrying Agreements (Agreement Approval & Status of the Newborn Child) (Amendment no. 2) Bill, 5777-2017 (hereinafter: the Bill). This Bill was introduced in the Knesset on  July 5, 2017, and passed its first reading on July 17, 2017. In its updating notice, Respondent 1 explained that the Bill deals, inter alia, with extending access to Israeli surrogacy agreements, and asked that we rule that, in light of the introduction of the Bill, the petition does not show cause for judicial intervention. In their response of July 21, 2017, the Petitioners contended that the petition should be addressed immediately, in accordance with the current legislative situation, and that in view of the ongoing plight of the Petitioners – some 21 years after enactment of the Law – there is no justification for delaying for an additional, lengthy period for legislative developments. They also emphasize that the Bill relates to the access of genetically-related single women to surrogacy agreements, but does not provide a response for the petitioners in this petition.

3.         As will be explained below, in view of the fact that the Bill recently passed its first reading, on the assumption that the legislative process will proceed at a suitable pace, and in light of the judicial restraint required in sensitive matters such as the matter at hand, we are satisfied that the legislature should be granted a certain amount of time in which to complete that legislative process prior to our deciding on the merits of the petition as a whole. However, since the principled arguments of the parties concerning the points of contention have already been heard, it is already possible, in our opinion, to decide on parts of the petition, and it particular, on the arguments of Petitioners 5-6 (hereinafter: the Petitioners) that it should be permissible to enter into a surrogacy agreement in the absence of any genetic link between the prospective parent or prospective parents and the newborn.  In my opinion, even though the Petitioners’ argument that the requirement for a genetic link violates the right to parenthood has merit, this violation meets the conditions of the limitations clause in sec. 8 of Basic Law: Human Dignity and Liberty, and as such, the arguments on this matter must be dismissed.

My opinion will be presented in two parts: the first part will address the decision to postpone deciding on the petition in the matter of extending access to surrogacy to family units that are not presently included; the second part will present a partial judgment that dismisses the arguments for striking down the requirement of a genetic link in surrogacy procedures, as will be explained below.

Postponement of the Decision on the Petition

4.         As I mentioned above, recently – on July 5, 2017 – a Government bill to amend the Agreements Law was introduced in the Knesset. This proposal passed its first reading in the Knesset plenum on July 17, 2017, and at the time of writing this opinion, it is before the Knesset Labor, Welfare and Health Committee, awaiting preparation for the second and third readings. This proposal – should it be enacted as presently formulated – is expected to bring about a significant change in the current surrogacy arrangements, including allowing, for the first time, single women who have a genetic link to the child to enter into surrogacy agreements. As opposed to this, the formulation of the proposal provides no succor for what is sought by the Petitioners, since it does not extend the Law to same-sex couples and to single men. It should be noted that the said proposal is partially based on the Memorandum for Embryo Carrying Agreements (Agreement Approval & Status of the Newborn Child) (Amendment – Definition of Prospective Parents and Conditions for Approval of the Agreement) Law, 2777-2016 (hereinafter: Memorandum of the Law), which was published on Oct. 30, 2016, and which similarly proposed expanding the definition of “prospective parents” in sec. 1 of the Agreements Law to include a single woman. Against the background of this development, I believe, as I wrote, that the legislature should be permitted to exhaust the legislative process before this Court decides on the full petition. Below I will briefly discuss my reasons for this.

5.         To begin, I will note that for this Court to accord status to a legislative initiative, and in particular, to postpone a hearing in proceedings that are affected by that initiative, is not a common phenomenon (for an in-depth analysis of the issue in modern legal literature, see Bell Yosef, A Mixed Blessing: The Normative Status of Legislative Initiatives 40 Tel Aviv L. Rev. 253 (2017) (Heb.) (hereinafter: Yosef). For a review of the judgments in which a legislative initiative has affected the course of the hearings in a petition before this Court sitting as the High Court of Justice, see ibid., at 262-66). In my view, this is not a bad thing, for it demonstrates a proper, healthy expression of the constitutional dialogue between the branches of government, in which each respects the sphere of activity of the other (see: HCJ 8665/14 Desta v. Knesset [1], para. 1, per Justice E. Hayut, paras. 1-7 per Justice H. Melcer (hereinafter: Desta); HCJ 2390/96 Karsik v. State of Israel, Israel Lands Administration [2], para. 6; CFH 5161/03 E.S.T. Projects and Human Resources Management Ltd. v. State of Israel [3] para. 13; Aharon Barak, The Judge in a Democratic Society, 376-89 (2004) (Heb.) (hereinafter: Barak, Judge in a Democratic Society); David Zecharia, The Pure Sound of the Piccolo: The Supreme Court, Dialogue and the Fight Against Terrorism, 241-43 (2012) (Heb.); Yosef, at 292-308; Barry Friedman, Dialogue and Judicial Review, 91 Mich. L. Rev. 577 (1993); Peter W. Hogg & Allison A. Bushell, The Charter Dialogue between Courts and Legislatures (or perhaps The Charter of Rights isn't such a Bad Thing after all), 35 Osgoode Hall L. J. 75 (1997)). The words of Justice (emer.) E.E. Levy in HCJ 466/07 Galon v. Attorney General [4] (hereinafter: Galon case) are apt here:

[The] concept of constitutional dialogue [reflects] an understanding that protection of the values embodied in the constitution is an endeavor that is common to the three branches of government. This understanding does not undermine the democratic fundamental principles of the separation of powers and checks and balances; rather, it is concerned with furthering the dialogue between the branches of government and the mutual sensitivity between them … This understanding provides a foundation for the approach whereby it is best that engagement with constitutional questions should be the outcome of an honest, constant and continuous dialogue between the branches. This will likely be beneficial for the conduct of government in general. It may well be good for human rights. It is able to dispel antagonism, which is frequently connected to the notion of a right and protection of this right. It has the ability to aid in the development of additional constitutional rights. It allows basic rights to share the spotlight with other values, the promotion of which is important to the public (para. 42 of his opinion).

6.         In the circumstances of the present petition, since the legislature has expressed its intention to introduce changes into the Agreements Law and to consider the scope of the definition of “prospective parents”, a decision concerning the constitutionality of the formulation of the existing Law is liable to constitute undue interference in the sphere of activity reserved for it as the “senior partner” in legislation (Barak, The Judge in a Democracy, 380). The “right of way” that ought to be given to the legislature when we are dealing with a constitutional defect was discussed by my colleague, Justice E. Rubinstein in HCJ 5771/12 Moshe v. Committee for Approval of Embryo Carrying Agreements [5] (hereinafter: Moshe case), the backdrop to which was an earlier proposal to amend the Agreements Law. He wrote:

… the existence of current legislative proceedings to expand the existing circle of eligibility in the Embryo Carrying Law naturally and sensibly calls for judicial restraint by this Court, so that it will not snap at the heels of the legislature …. Of course, if ultimately there is no legislative process, constitutional judicial intervention must not be ruled out …. However, the appropriate port of call for such changes is first and foremost the legislature, and the existence of advanced legislative processes warrants such judicial restraint (para. 46 of his opinion; and see para. 17 of Justice Hayut’s opinion).

7.         Moreover, in my opinion, making a decision on this petition on the matter of expanding access to surrogacy at this time raises practical difficulties. This is because the normative framework on which this Court will base its decision is liable to change within a short time,  which would render our determinations, and any relief that may be given, purely theoretical. Moreover, a decision on the petition after the legislative process has been completed will ensure that the resources of this Court will be devoted to an issue that has practical application (cf: Yosef,  284-86).

8.         The Court must certainly exercise caution in postponing its decision on a pending petition due to a legislative initiative. There may be circumstances in which it is inappropriate to adopt such a course, whether because the postponement is liable to severely harm the petitioners or to allow a wrong requiring immediate remedy to persist, or whether because the chances of the legislative initiative maturing into a change in the normative framework are slim. In a certain sense, the major consideration in this matter appears to me to be similar to the criteria for examining a claim of ripeness in constitutional law. As I have pointed out on more than one occasion, a decision on this argument ought to be made by balancing the benefits of addressing the matter confronting this Court in another forum (in our case – the legislature) against the anticipated harm to the petitioners by allowing the existing normative situation to persist (cf. HCJ 3166/14 Gutman v. Attorney General [6], para. 5 of my opinion; HCJ 2311/11 Sabah v. Knesset [7], para. 7 of my opinion (hereinafter: Sabah case); HCJ 1213/10 Nir v. Knesset Speaker [8], para. 18 of my opinion (hereinafter: Nir case)). Therefore, I will now examine the different aspects of the legislative initiative before us, while addressing the primary criteria that have been proposed in the academic literature on this matter (see: Yosef , 301-18) and explaining why, in my view, the benefits outweigh the harm.

9.         I will first look at the legislative process concerning the matter before us. It is evident that this is not some trifling initiative that has been abandoned over the course of time. The Bill was introduced by the Government, and passed its first reading in the plenum with a majority of 12 to 1, with members of both the coalition and the opposition voting for it, even though the latter expressed reservations about the lack of a response to same-sex couples in the proposal (see: Minutes of Session no. 254 of the 20^th Knesset, 205-217 (July 17,.2017)). In the said circumstances, in my view, we  should consider the official status of the initiative and the possibility that it will indeed develop into a legislative amendment (cf: Yosef, 313-315). Moreover, the Bill has recently moved forward, and currently appears on the legislative agenda, thus increasing the concern about undermining a legislative process in its initial stages (cf: Yosef, 309-10).

10.       In their response to the updating notice of Respondent 1, the Petitioners note the concurrence between the progress in the legislative process and the course of the hearing on this petition. Indeed, it is evident that the legislative memorandum was published between the two dates for oral hearings on this petition, and that the Bill was submitted to the Knesset after the conclusion of the hearings and after the parties had submitted all their pleadings,  while this Court was deliberating the matter. According to the Petitioners: “It is difficult not to feel some discomfort in view of this conduct.” I am myself surprised that it was not possible to advance a legislative process like the one before us over the course of years, particularly in view of the explicit determination of Justice M. Cheshin in 2002 in HCJ 2458/01 New Family v. Committee for Approval of Embryo Carrying Agreements [9] (hereinafter: New Family case), according to which the distinction made by the Agreements Law between women who are in a relationship and single women is discriminatory (ibid., paras. 40-42). However, whatever mistakes were made in the past, my position looking forward is that there is nothing illegitimate in advancing a legislative initiative in response to or in connection with proceedings that are under way in this Court – as long as the motives are relevant and worthy. In this context, Prof. Barak’s words are apt:

In my view, legislation in the course of a pending judicial process does not harm the Court and the mutual respect to which the branches of government are committed. If the legislature concludes that a law is not constitutional, it is not required to wait for the Court to rule on the matter. This is also the case when the legislature concludes that the existing legislation is inappropriate, and should be changed. In such situations, there is no disrespect of the Court when the legislature seeks to have its say first, without waiting for a judicial decision and without harming the party whose matter is before the court. As opposed to this, the judiciary would be severely undermined if the Knesset were to make a decision intended to influence the discretion of the judges in a matter pending before the Court (Barak, Judge in a Democratic Society, 389; see also: Yosef, at 299).

However, the situation in the present petition is more complex, inasmuch as the legal defect that the legislature is correcting is more limited in scope than Petitioners’ objection, and therefore, even if the legislative process is completed, it will not necessarily obviate a decision on the petition. In these circumstances, Prof. Barak’s comment at the end of the above passage is doubly relevant, and indeed, one must avoid a scenario of repeated requests for postponements to allow for completion of the legislation, with the anticipated legislative amendment becoming a means at the service of the Respondent. For this reason, I would propose to my colleagues that we allocate a reasonable period of time after which the State will be required to provide an update concerning the legislative process. Obviously, a rate of progress that does not comport with the importance of the process, taking into account its complexity, will attest to a lesser degree of commitment to its advancement than that attributed to it at this stage, and will also lessen the justification for allowing extra time for its completion, despite the fundamental difficulties raised by this petition (cf: HCJ 6665/12 E-Cig Ltd. v. Director General of the Ministry of Health [10], para. 27).

11.       I will now proceed to examine the nature of the matter under discussion, and its ramifications for the appropriate attitude to the legislative initiative and the benefit that may  derive from its completion. In particular, I will discuss the substantial complexity on two levels: the professional level and the level of values.

12.       On the professional level, it is patently clear that the Agreements Law reflects a complex legislative arrangement based on a system of balances and monitoring mechanisms. This system constitutes the product of lengthy, meticulous legislative processes based on the recommendations of the public commission headed by Judge (emer.) Shaul Aloni, which studied the subject of in vitro fertilization, including the matter of surrogacy, and published its recommendations in 1994. Some two decades later, another public commission – the Mor Yosef Committee –  studied the subject of fertility and reproduction in Israel, including the issue of surrogacy and those who are eligible to avail themselves of it. On the basis of what has been said above, it is evident that the heart of the dispute in the present petition involves questions of expertise – a fact that attests to its considerable complexity from the professional perspective.

13.       At the level of values, the range of medical reproductive techniques gives rise to various social, moral, ethical, religious and legal problems concerning the status of those who contribute gametes to the reproductive process, and of the surrogate mother, as well as broad social implications that may arise from the use of these means (see, in depth: Benzion Schereschewsky  & Michael Corinaldi, Family Law, vol. 2, 979-1006 (2016) (Heb.); Pinhas Shifman, Family Law in Israel vol. 2, 101-35 (1989) (Heb.); Janet L. Dolgin & Lois L. Shepherd, Bioethics and the Law 94-321 (3^rd ed., 2013) (hereinafter: Dolgin & Shepherd). Private surrogacy agreements in themselves are a subject of legal, academic, social and public discussion revolving around the physical, psychological and familial difficulties of the surrogate mothers (Nuphar Lipkin and Etti Semama, From Worthy Act to an Off-the-Shelf Product: Creeping Normativization of Surrogacy in Israel, 15 Mishpat u-Mimshal 435, 480-85 (2013) (Heb.); Margaret Jane Radin, Market Inalienability, 100 Harv. L. Rev. 1849, 1928-32 (1987); Stephen Wilkinson, The Exploitation Argument against Commercial Surrogacy, 17 Bioethics 169 (2003); June Carbon & Judy Lynee Madeira, The Role of Agency: Compensated Surrogacy and the Institutionalization of Assisted Reproduction Practices, 90 Wash. L. Rev. Online 1, 13-19 (2015)), and on the compatibility of such agreements with public policy (see and cf.: LFA 1118/14 Anon. v. Ministry of Welfare and Social Services [11] para. 3 per Justice H. Melcer (April 1, 2015) (hereinafter: Anon. case); New Family case, para. 39 per Justice M. Cheshin; Dorit Shapira and Yosef Shapira, A Decade to the Embryo Carrying (Agreement Authorization & Status of the Newborn Child) Law, 5756-1996: The Reality and the Ideal, 36 Medicine and Law 19, 29-32 (2007) (Heb.); Ruth Zafran, The Family in the Genetic Era – Definition of Parenthood in Circumstances of Artificial Reproduction in a Test Case, 2 Din u-Devarim 223 (2006) (Heb.); Hila Keren, Contract Laws from a Feminist Perspective 273-75 (2004) (Heb.); Report of the Public Professional Committee for the Examination of the Subject of In Vitro Fertilization 48-49 (1994) (Heb.) (hereinafter: Aloni Commission); Deborah S. Mazer, Born Breach: The Challenge of Remedies in Surrogacy Contracts, 28 Yale J.L. & Feminism 211, 222-28, 231-38 (2016); the position of the Supreme Court of the State of Tennessee, United States, which allowed the enforcement of surrogacy agreements subject to various restrictions: In re Baby, 447 S.W.3d 807, 827-30, 832-33 (2014); the prohibition on the enforcement of surrogacy agreements except for allowing enforcement of the amount of compensation for the surrogate mother in New South Wales, Australia – Surrogacy Act 2010, §6; and section 541 of the Civil Code that prohibits the enforcement of surrogacy agreements: Droit de la famille -151172, 2015 QCCS 2308 (canlii, 5.20.2015), § 111).

14.       As we therefore see, the complexity presented by the Petitioners’ requested expansion is not inconsiderable in view of the range of professional and principled considerations it raises.  Justice M. Cheshin commented on this in the New Family case, stating:

… surrogacy is a new phenomenon, and the unknown exceeds the known in its ramifications for human life – in terms of health, emotion, society, religion and law. The process of surrogacy involves difficult human issues … with the passage of time and the amassing of knowledge and experience, it will be appropriate to revisit the subject (at 457-62).

Indeed, a great deal of time has passed since the advent of Israeli regulation of surrogacy and the judgment in the New Family case. Over the years, scientific knowledge on the subject has increased and essential experience has been accumulated by the professional bodies tasked with its realization. While the passage of time has indeed lessened the complexity discussed above, it cannot entirely eliminate it.

15.       In my opinion, this complexity reinforces the inappropriateness of deciding this petition at this time (cf: Yosef, 318). As we have often noted, developing policy, particularly policy in regard to sensitive issues at the heart of the public agenda and matters of professional expertise, is not the job of this Court, which lacks the resources of professional knowledge available to the legislature. This is evident, for example, in the restrained approach adopted by this Court in regard to legislation concerning socio-economic policy, which similarly involves professional considerations that are beyond the Court’s area of expertise (see, e.g.: HCJ 4406/16 Association of Banks in Israel v. Knesset [12], para. 39, per my colleague President M. Naor (hereinafter: Association of Banks case); HCJ 3734/11 Davidian v. Knesset [13], para. 39, per my colleague President M. Naor (15.8.2012); HCJ 4885/03 Israel Poultry Farmers Association v. Government [14], 60; CLA 3145/99 Bank Leumi Ltd. v. Hazan [15], 406-09), as well as in the willingness of this Court to defer deciding upon petitions that concern matters of broad public concern, such as the deferment of the military service of full-time yeshiva students (see: HCJ 6298/07 Ressler v. Israel Knesset [16], paras. 3-4, per President D. Beinisch, and the constitutionality of the Citizenship and Entry into Israel (Temporary Provisions) Law, 5763-2003 (see: HCJ 7052/03 Adalah Legal Center for Arab Minority Rights v. Minister of Interior [17], para. 16, per President A. Barak (hereinafter: Adalah case)).

This does not, of course, detract from the authority of this Court to examine the constitutionality of legislation that is brought before it, and cure possible constitutional defects. This is not one of those cases in which the complexity of the issue justifies our total refusal to address it on the merits (cf: HCJFH 10007/09 Gluten v. National Labor Court [18], per President A. Grunis (hereinafter: Gluten case); for a discussion see: Yosef, 286-88). However, due to the separation of powers and the institutional differences that I discussed, I believe that it is better if the legislature first address surrogacy arrangements, and amend the law in light of its understanding and considerations. This adjournment will also allow the Petitioners, and their representatives in the legislative branch, to participate in the parliamentary and public conversation on amending the law, and try to influence its outcome. Through this process it may be possible to resolve, or at least moderate, the problems in the existing legal situation – which I will address at the end of my opinion – and yield a result in which I believe all the parties can profit. However, if these problems remain and the Petitioners insist on their arguments, we will decide upon the constitutionality of the new arrangement.

16.       As opposed to the weighty considerations that I enumerated stands the harm to the Petitioners. It should be stated from the outset that this petition is not a sporadic legal performance. Rather, it lies at the heart of a long, persistent, struggle for equality and for recognition on the part of the LGBT community in a range of areas of life, and in particular in all that concerns the right to become a parent (for a discussion of the various aspects of this issue see, e.g.: Ayelet Blecher-Prigat and Ruth Zafran, "Children are Joy": Same-Sex Parenthood and Artificial Reproductive Technologies, LGBTQ Rights in Israel: Gender Identity, Sexual Orientation and the Law (Einav Morgenstern, Yaniv Lushinski & Alon Harel eds., 2016) 395 (Heb.) (hereinafter: Blecher-Prigat & Zafran); Zvi H. Triger and Mili Mass, The Child in her Family: A Necessary Turn Towards LGBT Adoption in Israel, LGBTQ Rights in Israel: Gender Identity, Sexual Orientation and the Law (Einav Morgenstern, Yaniv Lushinski & Alon Harel eds., 2016) 437  (Heb.) (hereinafter: Triger & Mass)). There is therefore no denying that postponing the decision on the petition is very significant for the Petitioners, as well as for many others of the Israeli public, whether they are members of the community itself or other citizens who identify with their pain. This is due to the strong desire of men and women of the gay community to become parents, and the serious injury to their dignity as a result of the distinction drawn by the Law between them and heterosexual couples – a distinction of dubious relevance, as I will explain below. Moreover, the purpose of the postponement – giving the legislature time to complete the process of amending the Agreements Law – is not accompanied by good news for the Petitioners, for even in its proposed formulation, the Law will not provide relief for the distress of single-sex couples and of single men.

It is not superfluous to say that the disagreement around the accessibility of surrogacy to single-sex couples, as well as for single parents, is not new to us, and over the years it has brought various petitioners – including Petitioners 1-2 in the present case – to come knocking on the doors of this Court with a request for help.  Below I will briefly discuss the main milestones in this chronology in order to illustrate the many years of bitter experience suffered by the Petitioners and the community to which they belong with the subject before us, and the difficulty inherent in sending them away empty-handed – at least in the interim period until the legislative process is completed.

Already in the early years of this century, in the New Family case, this Court addressed the distinction drawn by the Law between single women and women in heterosexual relationships. Although the Court recognized the constitutional difficulties this distinction raises, it refrained from intervening in the Law in view of the need to acquire further experience from its implementation. About a decade later, Petitioners 1-2 in the present case petitioned this Court against the decision of Respondent 1 to deny them a surrogacy procedure because they did not, in its view, fall within the definition of “prospective parents” under the Agreements Law. That petition was dismissed with the consent of the parties, in view of the anticipated establishment of the Mor Yosef Committee (see: HCJ 1078/10 Arad Pinkas v. Committee for Approval of Embryo Carrying Agreements [19]). The Moshe case, heard in this Court several years later, also raised questions involving the limited access to surrogacy, but the Court preferred to refrain from judicial intervention in the provisions of the Agreements Law due to the legislative proceedings that were underway at that time (see: ibid., para. 17 per Justice E. Hayut). Those proceedings, it is only fair to say, did not result in a legislative act.

17.       To summarize: we face a difficult choice, as it is said, “Woe unto me from my Creator [yotzri] and woe unto me from my inclination [yitzri]” (Babylonian Talmud, Berakhot 61a). On the one hand, there is considerable value in allowing the legislature time to complete the legislative process that it began,  which is now at an advanced stage and enjoys wide support in the Knesset. Allowing this time will allow for public debate of the sensitive issue in an institutional framework appropriate to its complexity, and will express an appropriate democratic constitutional approach in which the branches show a willingness to listen to one another and respect the sphere of authority of the other. On the other hand, postponing adjudication of the petition will extend the violation of the Petitioners’ rights,  the exalted constitutional status of which is not in doubt. This violation has affected them, and the community to which they belong, since the passage of the Agreements Law in 1996, and it constitutes only one of the many aspects in which Israeli law has not yet adapted itself to the reality of pluralistic life today.

18.       After having given serious thought to the matter, and not without hesitation, I have concluded that the time is not ripe for deciding on the matter of Petitioners 1-4, in light of the pending legislative proceedings in the Knesset, inter alia, on the question of the definition of “prospective parents” in the Agreements Law. I am certain that the legislature will be aware of the serious, on-going harm to the Petitioners, and will act with due dispatch to complete the legislative process. For this reason, I would recommend that we postpone hearing the petition for a six-month period, and that we order the Respondents to submit updated notice of the progress of the legislation no later than Feb. 4, 2018.

I will now proceed to the second part of the opinion – an examination of the constitutionality of the requirement of a genetic link in the surrogacy process.

The Requirement for a Genetic Link in the Surrogacy Process

19.       Medical procedures aimed at assisting fertilization for the purpose of pregnancy and birth have existed since the end of the eighteenth century, but recourse to these procedures became common only in the middle of the twentieth century, both in the wake of technological developments and in the wake of social changes (see: Ruth Zafran, Secrets and Lies: The Right of AID Offspring to Seek Out their Biological Fathers 35 Mishpatim 519, 527 (5765-2005) (Heb.) (hereinafter: Zafran, Secrets and Lies); Dolgin & Shepherd, at 321-28). To simplify the discussion, we can talk about four different links in the reproductive process that can be improved or replaced through medical procedures: the sperm, the egg, the fertilization process, and carrying the pregnancy by the woman (who is called a “surrogate”). Correspondingly, there are different medical procedures that can improve the quality of the sperm of the prospective father or allow for the use of a sperm donation in order to fertilize the egg. There are medical procedures that allow for ova to be extracted from the woman and fertilized outside of her body in order to overcome medical problems in fertilization; there are medical procedures that make it possible to donate a fertilized ovum and implant it in the womb of a woman who has not succeeded in becoming pregnant; and there are medical procedures for implanting a fertilized ovum into the womb of a woman who will serve as a surrogate. In other words, from a medical point of view, there are solutions that provide a response to various challenges in the reproductive process and allow for a child to be brought into the world without a genetic link to the prospective parent (Gaia Bernstein, The Socio-Legal Acceptance of New Technologies: A Close Look at Artificial Insemination, 77 Wash. L. Rev. 1035 (2002); Noa Ben-Asher, The Curing Law: On the Evolution of Baby-Making Markets, 30 Cardozo L. Rev. 1885 (2009) (hereinafter: Ben-Asher, The Curing Law); on more innovative reproductive possibilities and the possibility of legal adoption, see: Erez Aloni, Cloning and the LGBTI Family: Cautious Optimism, 35 N.Y.U Rev. L. Soc. Change 1, 14-17, 18-36 (2011); and see Recommendations of the Public Committee for the Examination of the Legislative Regulation of the Subject of Fertility and Reproduction in Israel (hereinafter: Mor Yosef Committee). This possibility is not purely theoretical, as transpires from the case of Anon. that was heard recently by this Court. That case concerned a transaction entered into by a single woman who obtained an egg donation and a sperm donation, implanted the fertilized egg in a surrogate, and sought to be recognized as the single parent of the child, even though she had no genetic link to the child. The point is – and as decided there – such a request does not comport with the provisions of the Law. Section 2(4) of the Agreements Law conditions entering into a surrogacy agreement on the sperm being that of the prospective father; and secs 6(b), 11 and 13 of the Ova Donation Law, 5770-2010 (hereinafter: Ova Donation Law) allow women to receive egg donations for the purpose of a surrogacy process only in accordance with the provisions of the Agreements Law. For this reason, it was not possible to recognize the process of parenthood initiated by the petitioner in that case as a legal surrogacy procedure. However, whereas the Anon. case dealt with the possibility of retroactive recognition of the process described, and in doing so raised constitutional questions, in the present case the Petitioners have grabbed the bull by the horns, and they ask that we look into the very constitutionality of the arrangement. I will discuss this below in the context of the requirement for a genetic link, and in that context only.

The Arguments of the Parties

20.       Petitioners 5-6 are single women who seek to realize their right to become parents with the help of the surrogacy process. Due to medical problems, however, not only are they not able to carry an embryo in their wombs, but they also cannot provide their own eggs. Their request, therefore, is to enter into a surrogacy agreement without there being any genetic link between themselves and the child. On Oct. 31, 2013, Petitioner 5 asked the Approvals Committee that had been established pursuant to the Agreements Law to approve her entering into a surrogacy agreement. Her request was dismissed in limine on Nov. 24, 2013, since according to the Committee, the Petitioner did not fall within the definition of “prospective parents” as provided in the Law. The Committee was also of the opinion that because one of the requirements of the Law is the existence of a genetic connection between the prospective parents and the child-to-be, the Law does not allow for use of a sperm donation as well as an ovum donation for the purpose of the procedure.

On Oct. 31, 2014, counsel for the Petitioners submitted a letter on their behalf and on behalf of the other petitioners in the petition to the (then) Minister of Health, to the person responsible for the Agreements Law in the Ministry of Health, to the Attorney General, to the Legal Adviser of the Knesset and to the Legal Adviser of the Ministry of Health, in which she requested approval for them to submit their requests to enter into an agreement, and for these requests to be considered on their merits. In her response dated Jan. 4, 2015, the Legal Adviser of the Ministry of Health explained that it was not possible to respond positively to the Petitioners, and that the way to change the situation was by means of a legislative amendment. In view of this, the Petitioners submitted the present petition.

21.       The Petitioners contend that denying the possibility of their bringing a child into the world with the assistance of a surrogate constitutes a violation of their right to equality and their right to become parents – a violation that does not meet the criteria of the limitations clause. According to them, in the matter of surrogacy, there is no room to distinguish between a woman who is not capable of carrying a pregnancy to term but who is able to provide her own eggs for the fertilization process, and a woman who cannot  carry a pregnancy to term and is medically unable to use her own eggs for the fertilization. Their position is that in both cases, the right to parenthood is violated, and the state must repair this violation without distinction. The Petitioners point out that Israeli law recognizes parenthood in the absence of a genetic connection in several contexts: the Ova Donation Law allows a single woman to receive a donation of an ovum in order to become pregnant (where she is the one who carries the pregnancy); the Agreements Law allows a woman to be recognized as the mother when the child is born through surrogacy and there is a genetic link only to her partner, the prospective father; and the adoption procedures in the Child Adoption Law, 5741-1981, by their nature establish parenthood without a genetic connection. The Petitioners also think that the judgment in the Anon. case determined the issue of recognition of private surrogacy that is not in accordance with the Agreements Law, and that it therefore says nothing about the possibility of undergoing a controlled process of surrogacy without a genetic link, and in particular, it does not rule out this possibility.

As opposed to this, the Respondents insist that a parental connection in the absence of a genetic link is a complex matter that should addressed by legislation. According to them, this is all the more so in regard to surrogacy, which makes it possible to create a child with  no physiological link to the prospective parents. As a natural outcome, they argue, doing away with the requirement for a genetic link between the prospective parents and the child will turn the surrogacy process into a process resembling adoption. Here, the respondents refer to the position of the Mor Yosef Committee, which stressed the importance of the genetic link in fertilization procedures.

Deliberation and Decision

22.       As we know, the constitutional examination comprises three main stages: examination of the existence of a violation of a constitutional right, examination of the constitutionality of the violation in light of the limitations clause, and examination of the appropriate constitutional remedy. If there is no violation, or if the violation is constitutional, there is no need to move to the next stage of the examination (see: HCJ 9134/12 Gavish v. Knesset [20], para. 25 per President M. Naor; HCJ 10662/04 Hassan v. National Insurance Institute [21], para. 24, per President D. Beinisch, and the opinion of Justice U. Vogelman; HCJ 6427/02 Movement for Quality Government in Israel v. Knesset [22], paras. 20-21, per President A. Barak (hereinafter: Movement for Quality Government case). I shall discuss these stages in the above order.

23.       First, does the existing surrogacy arrangement violate the constitutional rights of Petitioners 5-6? As I shall immediately explain, in my view there is no violation of their right to equality. In my opinion, for the purpose of the process of surrogacy, there is a relevant distinction between prospective parents who are capable of having a genetic link to the child, and prospective parents who are unable to do so. As opposed to this, I am of the opinion that there is indeed a violation of the right of the Petitioners to parenthood.

The Alleged Violation of the Right to Equality

24.       The starting point is that there is a difference between people who are able to donate gametes (sperm or ovum) for the sake of creating an embryo, and those who are not able to donate gametes for the purpose of creating an embryo. This difference is a medical-biological difference that stems from the bodily capabilities of each person (on the developments in genetic research and their possible effect on the issue, see: Jennifer S. Hendricks. Genetic Essentialism in Family Law, 26 Health Matrix: The Journal of Law-Medicine, 109, 122 (2016); Jennifer S. Hendricks, Not of Woman Born: A Scientific Fantasy, 62 Cas. W. Res. L. Rev. 399 (2011); Rajesh C. Rao, Alternatives to Embryonic Stem Cells and Cloning: A Brief Scientific Overview, 9 Yale J. Health Pol'y L. & Ethics 603 (2009); Dolgin & Shepherd, 370-75). In the present matter, the question arises whether in the framework of the regulation of surrogacy agreements, there is a relevant distinction between a person who is able to provide gametes that will be used for the purpose of giving birth and will ensure that the child bears her genes, and another person who is unable to do so. The Petitioners argue that the condition whereby the prospective parent must supply his/her own genetic material in order for a surrogacy agreement to be approved, (i.e., a requirement for a genetic link) constitutes unlawful discrimination. I am of a different opinion. In my view, this is a distinction that is relevant and not discriminatory. The main reasons for this position are the recognition of the importance of the genetic link between parents and children in general, and the importance of this link in surrogacy in particular, as I will explain below.

25.       The genetic link between parents and their children is of considerable importance, and it has deep historical roots in most known human cultures. The words of Dr. Yehezkel Margalit on this link are apt here:

There is no material doubt that this is the most ancient model, which in almost every culture acquired historical and mythological exclusivity in determining legal parenthood – both fatherhood and motherhood. It should be stressed that even the critics of this model do not deny the very deep importance and significance of the genetic element (Yehezkel Margalit, Determining Legal Parenthood by Agreement as a Possible Solution to the Challenges of the New Era, 6 Din u-Devarim 553, 566-67 (2012) (Heb.).

The importance of the genetic link to the relationship between parents and children is a common thread in Israeli law. The legislature has referred to this link in several legislative acts: (see: secs. 3(a) and 9 of the Children’s Foster Care Law, 5776-2016; secs. 3(c) and 10(2) of the Succession Law, 5725-1965; sec. 6 of the Population Registry Law, 5725-1965; sec. 14 of the Legal Capacity and Guardianship Law, 5722-1962; secs. 1(a) and 3(a) of the Family Law Amendment (Maintenance) Law, 5719-1959; sec. 3(a) of the Women’s Equal Rights Law, 5711-1951; and arts. 5 and 9 of the Convention on the Rights of the Child, (concluded on Nov. 20, 1989, ratified on Aug. 4, 1991)); and this Court has mentioned several times the importance of the “voice of the blood” that symbolizes the genetic link between the child and parent (see, e.g.,: LFA 7141/15 A. v. B. [23], paras. 5-6 per Justice H. Melcer, and the references there (hereinafter: A. v. B. case); CFH 1892/11 Attorney General v. Anon. [24], per Justice E. Arbel (hereinafter: CFH 1892/11); LFA 5082/05 Attorney General v. Anon. [25], para. 5, per Justice A. Procaccia (hereinafter: LFA 5082/05); New Family case, para. 31, per Justice M. Cheshin; CA 50/55 Hershkovitz v. Greenberger [26], paras. 14-16, per Deputy President S.Z. Cheshin). I had the opportunity of relating to the matter in one of the cases, saying:

We must not forget the nature of the connection between a parent and his child. The connection of blood. The connection of life. The connection of nature … When we sever it, whether absolutely or relatively, we must act with great caution, taking into account the constitutional right of the parent, but on the other hand the constitutional rights of the child, the public interest, and sometimes the interest and even the right of the adoptive family, as may be appropriate (CFH 1892/11, para. 6 of my opinion).

26.       The elevated status of the genetic link has consequences for surrogacy, as emerged in the A. v. B. case. There, Justice Hendel noted three relevant links regarding surrogacy:  the genetic link, which is the connection between the prospective parent who contributed his or her genetic reproductive material and the child; the physiological link, which is the connection between the pregnant mother and the child; and the link to the link, which is the connection that a particular person has to the person with the genetic link to the child. It was explained there that the genetic link constitutes the basis for conferring the status of parenthood in the framework of the surrogacy process, and that it is a sine qua non for recognition of the link to the link. Justice Hendel explained that there is, indeed, also a physiological link – but its status in surrogacy is marginal, since this process, by its nature, separates the physiological mother (the surrogate) from the child (see, e.g., secs. 12-13 of the Agreements Law). Hence, in all that concerns the definition of parenthood in surrogacy, the genetic link is of great importance in the present legal situation.

The importance of the genetic link in surrogacy finds expression in several additional sources: the report of the Mor Yosef Committee, which found that surrogacy (as well as egg donation under the Ova Donation Law) is to be approved only on condition that one of the prospective parents has a genetic link to the child (see the Report, at 39-40, 62, 64); and see the Aloni Commission Report, 22-23, 48); in the language of sec. 2(4) of the Agreements Law; in the legislative history of the Agreements Law (see the minutes of session no. 430 of the 13^th Knesset, per the chairman of the Labor and Welfare Committee, Yossi Katz, and the Minister of Health Dr. Efraim Sneh (March 7, 1996) (hereinafter: minutes of session 430)); in the position of the State as presented to this Court (see secs. 47-49 of the Response of Respondent 1 to the amended petition); and in the bills to amend the Agreements Law that have been introduced in the Knesset in recent years (see: sec. 2(4) of the Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) (Amendment) (Amendment of the Definition of Prospective Parents and Conditions for Approval of Agreement) Bill, 5777-2017; sec. 3(2) of the Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) (Amendment – Extension of Eligibility for Surrogacy Processes and Extension of Protection of the Surrogate Mother) Bill, 5776-2016; Explanatory Notes to the Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) (Amendment no. 2) Bill, 5774-2014, and sec. 6(6) of this Bill; Explanatory Notes to the Bill, 1152, and sec. 2 of that Bill).

The importance of the genetic link in surrogacy has also been recognized in comparative law (see, in general: Michael Boucai, Is Assisted Procreation an LGBT Right?, 2016 Wis. L. Rev. 1066, 1082-93 and the references there; this is the position in South Africa (see: sec. 294 of the Children’s Act 38 of 2005; AB and Another v. Minister of Social Development [2016] ZACC 43, §§ 276-278 (hereinafter: AB case); in the UK – Human Fertilisation and Embryology Act 2008, art. 54(1)(b); in the Province of Alberta,  Canada (see: Family Law Act, Statutes of Alberta, 2003 Chapter F-4.5, § 5.1(d) (2016); in the State of South Australia (see: Family Relationship Acts 1975 – Sect 10HA § 2a(h)(2)); in the States of Virginia, Nevada and Maine in the United States (see: Alex Finkelstein et al., Surrogacy Law and Policy in the U.S – A National Conversation Informed by Global Lawmaking, Columbia Law School Sexuality & Gender Law Clinic 10, 55, 81-82 (2016); Nev. Rev. Stat. § 126.670, and in the European Court of Human Rights (see: Mennesson v. France (app. no. 65192/11, ECHR 2014); Paradiso & Campenelli v. Italy (app. No. 25358/12), §§ 195, 211). At the same time, it must be noted that some legal systems comprise arrangements that recognize surrogacy even without a genetic link. This is the case in the Canadian Province of British Columbia and in the Northwest Territories (see: Family Law Act [SBC 2011], C 25, §§ 20, 29; Children’s Law Act, S.N.W.T. 1997 §8.1(3)), in the State of California in the United States (see, e.g., Cal. Fam. Code §7960; and in further detail in the updating notice of the Petitioners), and in the States of Tasmania and Victoria in Australia (see: Assisted Reproductive Treatment Act 2008 No. 76 of 2008, §§ 3, 39-45 (Victoria); Surrogacy Act 2012 (No. 34 of 2012), §3 (Tasmania)).

27.       The consistent requirement of Israeli law and of most Western states for the existence of a genetic link between the prospective parents and the child in the surrogacy process has its logic. It is true that there are other significant connections between parents and children – emotional and psychological connections that build up over time. However, I believe that for the purpose of approving the surrogacy process, there is a relevant difference between the existence of those connections alone, which are present in every connection between parents and children, and the existence of a genetic link in addition to those connections. This is due, inter alia, to the special nature and the complexity of surrogacy for all those involved in it, and to the potential it harbors for causing harm unless it is properly regulated (see and cf: para. 42 below; AB case, paras. 177-85, 283-87, 293-94; on concern for “commercialization” of the production of children as a result of under-regulation of the surrogacy process, see: Elizabeth S. Anderson, Is Women's Labor a Commodity? 19 Phil. & Pub. Aff. 71, 75-80 (1990); Richard J. Arneson, Commodification and Commercial Surrogacy, 21 Phil. & Pub. Aff. 132, 150-51 (1992)). Now, the absence of a genetic link does not, per se, prevent recourse to assisted medical reproductive techniques that are not surrogacy. Even in the absence of such a link, a particular woman may seek the assistance of some reproductive technique, as long as she is able to have another, additional link to the child – for example, a physiological link (being pregnant with the child) or a link to a link (when there is a genetic link to the spouse who is the prospective parent). However, as I shall explain below, in the absence of the possibility of an additional link to the child in the surrogacy process, the importance of the genetic link rises to the point of exclusivity.

28.       Moreover, surrogacy is a sensitive process that brings together new medical techniques and the ancient societal need for survival – whose importance cannot be exaggerated – by the birth of children. This meeting requires extreme caution. Although surrogacy is becoming ever more common with the passage of time, it still raises various moral, ethical, religious and legal difficulties. However, these difficulties are somewhat tempered by the combination of this new reproductive technique with the recognized, central element of reproduction, i.e., the genetic link. What are the implications of this? Given the importance of reproduction for the existence and continuation of society, given the novel nature of the process of surrogacy and its possible effects on traditional reproduction, and given that the element of the genetic link is an established social element at the very heart of society, I believe that a distinction on the basis of a genetic link is relevant in the regulation of an assisted reproductive technique such as surrogacy. I would emphasize that this is not an expression of a position on the relationship between reproductive techniques and social conceptions in general – especially in regard to harm to groups that have been viewed as “suspect” – which requires a more careful study. What I have said is confined to the question of the relevance, solely in the context of surrogacy, of the distinction between prospective parents who have a genetic link to the child and prospective parents who are not able to establish such a link. Israeli law does not view those who are unable to establish a genetic link to the child on the basis of producing gametes as a “suspect group”,  and without laying down hard and fast rules, I am also not convinced that this is a case of “disability” as reflected in the anti-discrimination laws (see, and cf: AB case, paras. 298-302; Ben-Asher, The Curing Law 1912-1916; Seema Mohapatra, Assisted Reproduction Inequality and Marriage Equality, 92 Chi.-Kent. L. Rev. 87, 91-93, 100-02 (2017)). It is therefore evident that when we are dealing with assisted medical reproductive techniques like surrogacy, a distinction on the basis of the existence of a genetic link constitutes, as stated, a relevant distinction.

29.       It emerges from the above that both Israeli law and most Western states that permit surrogacy regard the genetic link between prospective parents and the child as an essential condition for this process – despite the harm it entails to those people whose personal circumstances prevent them from providing the reproductive material that will allow for a genetic link. It seems to me that on the basis of this common conception and the values underlying it, the requirement of Israeli law for a genetic link in the surrogacy process is not discriminatory, but rather it is based on material, relevant reasons. Therefore, I find that it does not violate the constitutional right of the Petitioners to equality, and I will proceed to examine the alleged violation of the other right – the right to become a parent.

The Alleged Violation of the Right to Become a Parent

30.       The right to parenthood has been recognized in Israel as a constitutional right that derives from human dignity (see, e.g.: HCJ 11437/05 Kav LaOved v. Ministry of the Interior [27], paras. 29-32 and 38-40 per Justice A. Procaccia, para. 4 of my opinion, and para. 6 per Justice E. Rubinstein; HCJ 2245/06 Dobrin v. Israel Prisons Service [28], para. 12 per Justice A. Procaccia (hereinafter: Dobrin case); CFH 2401/95 Nahmani v. Nahmani [29], 675-78, 719, 785 (hereinafter: Nahmani case)). There are two separate aspects to the right to parenthood: one is the right to realize parenthood, on which I have elaborated on other occasions and which does not lie at the heart of this petition (see: Adalah case, paras. 1-14 of my opinion); the other is the right to become a parent (see: Anon. v. Anon. case, paras. 5-8 per Justice H. Melcer and the references there, paras. 11-13 per Justice I. Amit; HCJ 4077/12 A. v. Ministry of Health [30] para. 29 per Justice E. Rubinstein (hereinafter: A. v. Ministry of Health); Moshe case, paras. 6-7 per Justice (emer.) E. Arbel; CFH 1892/11, paras. 4 and 6 of my opinion; LFA 377/05 A. & B. v. Biological Parents [31], paras. 7-9 per Justice A. Procaccia (hereinafter: Biological Parents case)). The right to become a parent realizes the right to family life, the right of autonomy of the individual, and the right to privacy (see: Moshe case, para. 26 per Justice E. Hayut; Biological Parents case, para. 7 per Justice A. Procaccia; A. v. Ministry of Health case, para. 32 per Justice E. Rubinstein, and para. 6 per Justice D. Barak-Erez; Nahmani case, para. 7 per Justice D. Dorner, para. 2 per President A. Barak; and see also: Aloni Commission, at 10-11; Daphne Barak-Erez, Symmetry and Neutrality: Reflections on the Nahmani Case, 20 Tel Aviv U. L. Rev. 197, 199-200 (1996) (Heb.)). Recently, a position has been expressed whereby the right to become a parent also stems from the right to liberty, as stated in sec. 5 of Basic Law: Human Dignity and Liberty (A.. v. B.. case, paras. 5-8 per Justice H. Melcer and the references there, paras. 11-13 per Justice I. Amit).

31.       The Petitioners’ argue that the requirement for a genetic link as provided in the Agreements Law affects their possibility of bringing a child into the world with the help of medical reproductive techniques, and particularly, the technique of surrogacy. I believe that this argument is correct. In my view, the scope of the right to become a parent extends to all the various medical techniques that assist reproduction. As such, this right also includes the possibility of becoming a parent by means of surrogacy. This position emerges both from the rulings of this Court (see: New Family case, paras. 31-32 per Justice M. Cheshin; A. v. Ministry of Health case, para. 27 per Justice E. Rubinstein, para. 6 per Justice D. Barak-Erez; Moshe case, para. 28 per Justice E. Hayut, paras. 6-7 per Justice (emer.) E. Arbel; Dobrin case, para. 15 per Justice A. Procaccia; and see reservations as to this decision in the Anon. case, para. 23 per Justice N. Hendel, and the references there); as well as from comparative law (see: European Court of Human Rights: S.H. v. Austria, App. No. 57813/00, §§ 81-82, ECHR 2011(hereinafter: S.H. case); Dickson v. United Kingdom, App. No. 44362/04 §§ 65-66, ECHR 2007; in the Constitutional Court of South Africa: AB case, paras 94, 110, 118, 121; in the Greek Constitution: European Parliament – Directorate General for Internal Policies, A Comparative Study on the Regime of Surrogacy in EU Member States, 277-78 (2013), and esp. note 513; and a combination of arts. 12(1) and 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights (signed Dec. 16, 1966, ratified Oct. 3, 1991), and on this matter see S.H. case, para. 9 of the minority opinion); also from academic research on the subject (see: Aharon Barak, Human Dignity: The Constitutional Right and its Daughter Rights, vol. 2, 675-76 (2014) (Heb.); Aharon Barak, The Light at the End of the Tunnel and the LGBT Community in Israel, Vol. III, Selected Essays: Constitutional Inquiries 399, 402 (2017) (Heb.); Meir Shamgar, Issues on the Subject of Reproduction and Birth, 39 HaPraklit 21, 28 (1996) (Heb.); and from the approach of the public committees that examined matters of medical reproductive techniques (see: Aloni Committee, 13; Mor Yosef  Committee, 25).

32.       From all of the above it emerges that the Petitioners have a constitutional right to become parents with the assistance of medical reproductive techniques. This right is a relative one: it is limited by sub-constitutional arrangements, and particularly by the Agreements Law and the Ova Donation Law (see: Moshe case, para. 2 per President M. Naor, para. 12 of my opinion, and paras. 25-26 per Justice E. Hayut; and see: Anon. case, para. 3 per President M, Naor; and see other limitations on aspects of the right to become a parent: A. v. Ministry of Health case, para. 51 per Justice E. Rubinstein, para. 11 per Justice D. Barak-Erez; and see AB case, paras. 237, 314-15). Below I will discuss whether this violation complies with the criteria of the limitations clause.

Limitations Clause

33.       As we know, the limitations clause in sec. 8 of Basic Law: Human Dignity and Liberty comprises four conditions: the violation must be by law or by express authorization in a law; the law must befit the values of the State of Israel as a Jewish and democratic state; the law must be for a proper purpose; and finally, the violation of the right must be proportionate (see: Desta case, para. 24 per President M. Naor; Sabah case, paras. 66-70 of my opinion; HCJ 3752/10 Rubinstein v. Knesset [32] paras. 66-67 per Justice (emer.) E. Arbel). I will now address the violations of the constitutional right of the Petitioners to become parents in light of these criteria.

34.       In the present matter, it is indisputable that the first condition is fulfilled, inasmuch as the violation of the protected right was effected by virtue of the Agreements Law. In my view, the Law complies with the second condition. The Agreements Law regulates and realizes both the right to become a parent with the assistance of medical reproductive techniques and protection of women who are pregnant in the framework of surrogacy (see, e.g., secs. 4(a)(2), 4(a)(3), (4(a)(4) of the Agreements Law) – and thus the Law promotes human rights. In these circumstances, and in view of the fact that this condition has not yet been sufficiently developed in the case law, it seems to me that the Agreements Law befits the values of the State of Israel as a Jewish and democratic state (see: HCJ 5304/15 Israel Medical Association v. Knesset [33], paras. 103-106 per Deputy President E. Rubinstein (hereinafter: Israel Medical Association case); HCJ 5239/11 Avneri v. Knesset [34], paras. 28-30 per Justice H. Melcer; Galon case, paras. 13-18, 27-31 per Justice (emer.) E.E. Levy, paras. 2, 8 of my opinion).

35.       The third condition examines whether the offending Law serves a proper purpose. I will first consider the purpose of the Agreements Law itself.  Justice M. Cheshin discussed the purpose of this Law in the New Family case, and ruled that its purpose was “to establish a comprehensive arrangement on the subject of surrogacy, and that there will be no surrogacy other than by virtue thereof […] to solve the problems of spouses, men and women, who are childless, and these problems alone (paras. 15, 18 of his opinion; and see the Moshe case, para. 44 per Justice E. Rubinstein). In my view, the purpose of the Agreements Law is broader than that determined by the late Deputy President M. Cheshin. My position is based on the subjective purpose of the Law, but mainly on its objective purpose. I shall explain.

36.       The subjective purpose of the Agreements Law may be inferred from two main sources. The first source is the language of the Law. Both the name of the Agreements Law and the broad areas regulated by the language of the Law – including approval of a surrogacy agreement (Chapter 2 of the Law), regulation of the status of the newborn, the surrogate mother and the prospective parents upon the birth of the child, which includes the link of the child to the prospective parents and severance of the link to the surrogate mother (secs.  4(a)(2), 4(a)(3), 4(a)(4) of the Law, and the criminal prohibition against surrogacy contrary to the provisions of the Law (sec. 19 of the Law) – attest to the legislative intention to permit surrogacy agreements, to regulate their conditions, to regulate the status of the child and its link to the prospective parents, and to assure the well-being of the surrogate mother. The second source is the legislative history. The explanatory notes to the Agreements Law reveal that “the proposed Law is intended to permit surrogacy agreements with certain limitations and in a controlled manner” (Explanatory Notes to the Agreements Bill, H.H. 259, 259) (hereinafter: Explanatory Notes to the Agreements Bill). Similarly, the Knesset members who voted on the Law in the second and third readings noted the regulatory purpose of the Law and its aspiration to realize constitutional rights. Thus, the Minister of Health, MK Dr. Ephraim Sneh, noted: “I, as initiator of this Law, insisted first of all that there be legislation, since there were those who wanted to allow some sort of free market in the State”. Thus, MK Yael Dayan, a member of the Labor and Welfare Committee of the Knesset, who worked on the Law, noted: “What is determinant with respect […] is the existence of a fundamental right, the right to be a parent […] in every case in which the right to motherhood is denied due to a physical handicap, due to the inability to become pregnant. This is a moral issue – a basic right of the first order” (minutes of meeting 430). What we see from the above is that the subjective purpose of the Law is to regulate surrogacy agreements in Israel, including the status of the prospective parents and their link to the newborn, and to realize the right to become a parent while preserving the dignity and the health of the surrogate. In addition, Justice M. Cheshin found that the intention of the legislature was also to restrict access to surrogacy so that only heterosexual couples would be eligible to avail themselves of this technique (see: New Family case, paras. 17-18 of his opinion).

37.       In order to determine the objective purpose of the Agreements Law, we will look at the interpretive presumptions. In the present matter, two of these presumptions are particularly relevant: the presumption that the law aspires to protect and realize human rights, and the presumption concerning legislative harmony. Regarding the first, the Agreements Law permits and regulates the realization of the right to become a parent with the assistance of medical reproductive techniques, and in particular, the technique of surrogacy. Similarly, the Agreements Law includes protection of the dignity and well-being of the surrogate mother – and in this way it realizes her constitutional rights in the framework of this process.

The second presumption concerning legislative harmony says that a piece of legislation should be interpreted in accordance with the legislative tapestry into which it is woven (LAA 4021/09 Tel Aviv Municipal Tax Administration v. Michel Marsiah Co. [35], para. 32 per Justice E. Rubinstein; LCA 8233/08 Kovashi v. Adv. Eyal Schwartz [36], para. 37 per Justice E. Arbel ; CA 3213/97 Nakar v. Local Planning and Development Council Herzliya [37], 633-34. In this context I noted in one of the cases:

It is a well-known principle of our legal system that when the Court seeks to interpret any statute, it must examine legal arrangements that are materially related to the subject under discussion (in pari materia). Giving the identical interpretation to subjects in related areas realizes the principle of normative harmony (HCJ 6728/06 “Ometz”— Citizens for Good Governance and Social and Legal Justice v. Prime Minister [38], para. 6 of my opinion).

This rule of interpretation tells us that different laws that pertain to the same matter or that have a similar or identical purpose (in pari materia) must be treated as one system of law with a comprehensive purpose, composed of different parts that complement each other: this is the legislative template. This legislative template has one main purpose, and every law that composes this template plays a different role in realizing the purpose of this template (see: HCJ 1756/10 Holon Municipality v. Minister of the Interior [39], para. 33 per Justice D. Barak-Erez (hereinafter: Holon Municipality case); CA 2449/08 Tuashi v. Mercantile Discount Bank Ltd. [40], paras. 22-26 of my opinion; HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Social Affairs [41], para. 42 per Justice M. Cheshin; Aharon Barak, Interpretation in Law: Statutory Interpretation 341-45 (5753-1993) (hereinafter: Barak, Statutory Interpretation) (Heb.)). This Court has recognized several legislative templates: thus, for example, the Hours of Work and Rest Law, 5711-1951, the Minimum Wage Law, 5747-1987, the Male and Female Workers Equal Pay Law, 5756-1996, the Employment of Workers by Manpower Contractors Law, 5756-1996, and the Foreign Workers Law, 5751-1991, all belong to one legislative template (see: Gluten case, paras. 11-12 of my opinion). It is similarly possible to identify a legislative template in the area of electronic media and radio broadcasts (see: HCJ 1030/99 MK Oron v. Speaker of the Knesset [42], paras. 16-22 per Justice T. Orr (hereinafter: Oron case); as well as in the area of environmental protection and prevention of pollution, see: CA 4239/15  Dor Alon Energy Israel 1998 Ltd. v. Tax Authority [43], paras. 17-19 per Justice N. Sohlberg; Holon Municipality case, paras. 30-31; HCJ 4128/02 Adam Teva veDin – Israel Union for Environmental Defense v. Prime Minister [44] paras. 14-15 per President A. Barak; and relating to road accident compensation, see: CA 420/83 Ashur v. Migdal Insurance Co. Ltd. [45], para. 22 per Justice A. Barak (27.5.1990); Aharon Barak, Interpretation of the Civil Codex “Israel Style”, Gad Tedeschi Memorial Volume – Essays in Civil Law 115, 147-48 (5756-1996) (Heb.)).

38.       Similarly, I believe that the various statutes that regulate assistance through medical reproductive techniques must be viewed as part of a legislative template. In the framework of this template one may mention the Ova Donation Law; the Agreements Law; the Public Health (In Vitro Fertilization) Regulations, 5747-1987 (hereinafter: IVF Regulations); and Public Health (Sperm Bank) Regulations, 5739-1979, Declaration of Control of Products and Services (Sperm Bank and Artificial Insemination), 5739-1979, and Circular of the Director General of the Ministry of Health, 2.1.14, “Rules Concerning the Administration of a Sperm Bank and Guidelines for Performing Artificial Insemination” (June 29, 1979) (hereinafter: Ministry of Health Rules). I base my position on several grounds: first, these laws share the common purpose of regulating the use of various medical reproductive techniques, they determine the relationship among these techniques, they permit certain techniques and prohibit others, and they include several guiding principles such as ensuring the well-being of women involved in the process and ensuring a link between the prospective parents and the child in these processes (see, e.g., in relation to the link: sec. 11 of the  IVF Regulations, which was struck down in HCJ 5087/94 Zabaro v. Minister of Health [46]; sec. 23 of the Ministry of Health Rules; secs. 10 and 12 of the Agreements Law; sec. 42(a) of the Ova Donation Law; and see also reference to the link in the various arrangements for recourse to assisted reproductive techniques in the recommendations of the public committees on which these laws were based – Aloni Commission, 22-23, 48; Mor Yosef Committee, 76-77). Second, from the fact that the provisions of these laws complement each other and refer to each other (see, e.g., reference to a “recognized department” under the IVF Regulations in sec. 2 of the Ova Donation Law and in sec. 1 of the Agreements Law; reference to the IVF Regulations in the Explanatory Notes to the Ova Donation Law, 292, and in the Explanatory Notes to the Agreements Bill, 259; and reference to the Agreements Law in secs. 4(b), 12(b) and 11 in the Ova Donation Law); and third, from their close material relationship (see: Blecher-Prigat & Zafran, 403-20; reference to the various arrangements as one whole in the report of the Mor Yosef Committee, 8-9; Dolgin and Shepherd, 328-34, at para. 19 above). We find, therefore, that a legislative template exists in regard to the regulation of assistance through medical reproductive techniques, and also that the Agreements Law is part of this legislative template. The primary purpose of this legislative template is to regulate assistance through medical reproductive techniques in order to realize the right to become a parent, while ensuring the health of those involved in the process, and regulating the link between the newborns and the parents. Adapting the purpose of the legislative template to the said Law shows that the objective purpose of the Agreements Law is to regulate the process of surrogacy in Israel in order to realize the right to become a parent, while preserving the dignity and the well-being of the surrogate mothers, and to regulate the status of the newborn and its link to the prospective parents. As we have said, this purpose also comports with the presumption concerning realization of human rights.

39.            Thus, the lion’s share of the subjective purpose is consistent with the objective purpose, but the other part – which is concerned with restricting availability exclusively to heterosexual couples – does not comport with the objective purpose. In examining the general purpose of the Law, I believe that the subjective purpose that comports with the objective purpose is to be preferred over one that contradicts it, for several reasons. First, in examining the general purpose of the Agreements Law on the basis of its two purposes, the effect of the time that has elapsed since the Law was enacted should be taken into account. As noted by Justice M. Cheshin in the Biological Parents case: “Everything flows. We never dip twice into the same river, and the law, as a system of norms that seeks to integrate into life and navigate the path of human beings, must consider time as a factor of prime importance. Time is the fourth dimension, both in our lives, and in the law” (para. 17; and see: CFH 2121/12 Anon. v. Dayan Urbach [47], para. 48 per President A. Grunis; CA 9183/09 Football Association Premier League Ltd. v. Anon. [48], para. 6 per Justice H. Melcer; New Family case, para. 53 per Justice M Cheshin; Barak, Statutory Interpretation, 242-44, 246-47, 264-71). In truth, we are not dealing with an archaic law, but with a law that was enacted in 1996. However, we may also not ignore the significant social changes that Israeli society has undergone since the nineties, including changes in the traditional family unit (see: Anon. v. Anon., para. 20 per Justice H. Melcer, para. 14 per Justice I. Amit; Pinhas Shifman, On the New Family: Opening Lines for Discussion, 28 Tel Aviv U. L. Rev. 643, 648-9, 667-70 (2005) (Heb.)) and changes in the approach of society to assisted reproductive techniques (see: recommendations of the Mor Yosef Committee to allow surrogacy for single women as well, and altruistic surrogacy for single men – Mor Yosef Committee, 15, 63; the changes in the Ministry of Health Rules over the years; Haim Abraham, Parenthood, Surrogacy and the State, 9 Hukim 171, 175-95 (2017) (Heb.)); Tali Marcus, It Takes (Only) Two to Tango? On the Possibility of Recognizing More than Two Parents for One Child, 44 Mishpatim 45, 416-19 (2014) (Heb.)). Secondly, given that we are concerned with statutory provisions that involve human rights, greater weight should be attributed to the objective purpose (see: HCJ 1892/14 Association for Civil Rights in Israel v. Minister of Public Security [49], para. 115 and the references there; AAA 4105/09 Haifa Municipality v. Sephardic Jewish Community Association, Haifa [50], para. 24 per Justice M. Naor (2.2.2012); Aharon Barak, Purposive Interpretation in Law 255, 421-27 (2003) (Heb.)). And third, in light of the interpretive principle that a non-discriminatory purpose should be preferred over a discriminatory purpose (see: HCJ 7245/10 Adalah –  Legal Center for Arab Minority Rights v. Ministry of Social Affairs [51], paras. 6-7 per Justice E. Hayut; HCJ 6698/95 Ka’adan v. Israel Land Administration [52], para. 13 per President A. Barak; HCJ 142/89 Laor Movement v. Speaker of the Knesset [53], para. 9 per Deputy President A. Barak). My approach is that the said societal changes, taken together with the rules for prioritizing the objective purpose when dealing with human rights, and preferring a non-discriminatory purpose, indicate that the objective purpose, which largely comports with the subjective purpose, should be preferred. Therefore, we should  hold that the condition allowing only heterosexual couples to enter into surrogacy agreements is not part of the purpose of the Law. Thus, the purpose of the Agreements Law is to regulate the surrogacy process in Israel, while ensuring the dignity and well-being of the surrogate mother and regulating the status of the prospective parents and their link to the child.

40.       Is this purpose a proper one? In my opinion, the answer to this question is affirmative. Indeed, the Agreements Law does somewhat violate the constitutional right to become a parent. However, the rule is that a law that violates a constitutional right may serve a proper purpose if that purpose “is intended to realize social purposes that are consistent with the values of the state as a whole, and that display sensitivity to the place of human rights in the overall social system” (Adalah case, para. 62 per President A. Barak; Israel Medical Association case, para. 107 per Deputy President E. Rubinstein Quality Government case, paras. 52-53 per President A. Barak; HCJ 2605/05 Academic Center for Law and Business, Human Rights Division v. Minister of Finance [54], para. 45 per President D. Beinisch). My position is that the social goals that underpin the Agreements Law – regulation of recourse to surrogacy as a medical reproductive technique, preservation of the health of  those involved in the process, regulation of the status of the newborn children and their relationship to the prospective parents, and realization of the right to become parents – are important social goals that justify a certain violation of human rights. These goals make it possible to realize the right to become a parent, and they protect women from exploitation. In addition, they ensure that each child that comes into the world as a result of these assisted reproductive techniques will have a link to a particular parent, thus also preventing abuse of the said techniques (such as creating children for commercial purposes) and promoting the well-being of the children. Therefore, in my view, the Agreements Law reflects a proper purpose, and as such it complies with the third condition of the limitations clause (see: HCJ 566/11 Mamet Megged v. Minister of the Interior [55], para. 17 of my opinion (hereinafter: Mamet Megged case)). Having found that the Agreements Law meets the first three conditions of the limitations clause, I will now focus the discussion on the condition of proportionality, with its three sub-criteria.

41.       First, the rational connection criterion. Does the requirement for a genetic link bear a rational connection to the purpose that the Law seeks to realize? I believe that the answer to this is yes. As will be recalled, the purpose of the Agreements Law is to regulate the process of surrogacy in Israel, while ensuring the dignity and well-being of the surrogate mother and regulating the status of the prospective parents and their link to the child. The Law’s requirement of a genetic link is rationally connected both to the regulatory purpose of the Law, and to the realization of the link between the prospective parent and the prospective child.

With respect to the regulatory purpose, the legislature saw fit to restrict access to surrogacy to a person who is capable of having a genetic link to the child. As noted above, this exclusivity of access says that only a person who is able to supply his or her own genetic material in order to create the embryo that is implanted in the surrogate can enter into a surrogacy agreement. This, therefore, is a regulatory constraint adopted by the Law that is connected to the regulatory purpose of the Law in that it permits entering into an agreement only on the said condition. As explained above, this condition is relevant to approval of the surrogacy process, and it therefore also complies with the case-law criteria with respect to a link that is not “arbitrary, unreasonable or unfair” (see: Quality Government case, para. 58 per President A. Barak; HCJ 4769/95 Menahem v. Minister of Transport [56], para. 23 per Justice D. Beinisch). Moreover, a clear line can also be drawn between this requirement and the legislative purpose relating to the existence of a link between the parents and the child, for as we have said, the mechanism set by the Agreements Law for the purpose of a link between the prospective parents and the child is based on the genetic link between them (see above, para. 27; AB case, paras. 283-87, 293-94). As such, I find that the requirement for a genetic link has a rational connection with the realization of the purpose of the Law.

42.       Second is the criterion of the least harmful means. The question here is whether there exists a means that similarly serves the purpose of the law, but which entails a lesser violation of the constitutional rights. In my view, the existing arrangement meets this sub-criterion as well. In examining the requirement for a genetic link as provided in sec. 2(4) of the Law, of particular relevance is the legislative purpose with respect to ensuring the existence of a link between the prospective parents and the child. The means chosen to realize this purpose is the requirement that the newborn be genetically related to one of the prospective parents. Therefore, at this stage we must ask whether a means exists that realizes the purpose of ensuring the connection between the parents and the child to the same degree, but at the same time is less harmful to the right to become a parent (see: Nir case, paras. 47-49 of my opinion; Aharon Barak, Proportionality in Law 395, 411 (2010) (Heb.)). In my opinion, the answer is negative. I will explain.

One could, indeed, argue that the purpose of ensuring the link between the prospective parents and the child could be realized through their emotional connection at the stages of initiation, approval and implementation of the surrogacy process, without any genetic connection (see the dissenting opinion in the AB case, paras. 177-85). It is true that the emotional parental link cannot simply be dismissed, and we need not address the nature of this link in the present framework (see, inter alia, recognition of this approach in this Court: Anon. case, para. 3 per Justice D. Barak-Erez, para. 2 per Justice H. Melcer; A. v. Minister of Health case, para. 29, 43-45 per Justice E. Rubinstein; Mamet Megged case, para. 14 of my opinion; LAA 5082/05 Attorney General v. Anon., paras. 22, 36 per President A. Barak; in the Supreme Court of the United States: Lehr v. Robertson, 463 U.S. 248, 259-264 (1983); Troxel v. Granville, 530 U.S. 57, 87-89 (2000); and in the Grand Chamber of the European Court of Human Rights: Paradiso & Campenelli v. Italy (app. No. 25358/12), §§ 140, 148-149; and see: Dolgin & Shepherd, at 329-31)). It is clear to me that the Law assumed that every prospective parent would establish the said emotional and psychological connection with the prospective child – a link that has existed between parents and children from time immemorial. However, in order to allow a person to bring a child into the world with the assistance of medical reproductive techniques, it was determined that an additional link is required beyond that emotional connection that exists in any case. Thus, for example, in the artificial insemination process, a genetic and physiological link with the prospective mother is required; and similarly, in the process of IVF a physiological – or absent that, a genetic – link is required. We see, therefore, that the condition of the existence of an additional link between prospective parents and a child born with the assistance of medical reproductive techniques is not met without some additional connection between at least one of the prospective parents and the child, besides the emotional connection.

What additional link is required in the surrogacy process? In view of the fact that the surrogacy process by its nature severs the connection between the surrogate mother and the child, the existence of a physiological link is not a relevant alternative here. Hence, the only means that serves the purpose of legislation requiring a link between the parents and the child is that of a genetic link between the prospective parents and the child as a condition for approving a surrogacy agreement. As such, I find that there is no means that realizes the purpose to the same extent and causes a lesser violation of the constitutional right under discussion. Therefore, the Law is in compliance with the second sub-condition.

43.       Third is the criterion of proportionality stricto sensu. In the framework of this sub-criterion, we must decide whether the benefit derived from adding the requirement for a genetic link for the approval of the surrogacy process is greater than the damage caused by this requirement as a result of the violation of the constitutional right of Petitioners 5-6 to become parents. My view is that the benefit outweighs the harm, and that the Agreements Law also complies with this condition. I will explain.

Let us begin with the benefit of the requirement for a genetic link. Above I discussed the great importance attributed in Israel and in the Western world to the genetic link in general, and in the surrogacy process in particular. I also explained that this regulatory element is consistent with the ethical decision of the Israeli legislature, and with that of other legislatures, in regard to the great importance of the genetic link to parents in the surrogacy process. I also explained that the legislature sought to confine surrogacy to circumstances in which an additional link to the emotional link engendered by the parental connection would be forged in the framework of the broad regulation of assisted reproductive techniques, in which some kind of link in addition to the emotional link is required. Similarly, I pointed out that this link helps in addressing some of the potential problems raised by assisted reproductive techniques such as surrogacy, and it constitutes a fulcrum for assistance through such techniques (see above, para. 27). In this case, the requirement for a genetic link reflects benefits that are in keeping with the purpose of the Agreements Law – ensuring the connection between the newborn and the prospective parents, and helping regulate the use of surrogacy on the basis of relevant distinctions. These benefits cannot be brushed aside, and the proof is that most states in the Western world that permit surrogacy have adopted similar models requiring a genetic link between the child and the prospective parent.

I will now discuss the harm caused by the demand for a genetic link. This requirement undeniably entails a result that is harmful to the right of Petitioners 5-6, and of other men and women like them that fate has not been kind enough to allow to become parents. However, this harm is not at the core of the right to become a parent, and it does not affect the existence of this right. Rather, it affects its mode of realization (see: Moshe case, para. 2 per President M. Naor, para. 12 of my opinion, and para. 26 per Justice E. Hayut). This is because Israeli law does not negate the right of the Petitioners to become parents in general, but rather, prevents their access to a particular, special track because they do not comply with the criteria required for this track. Blocking the track leaves open a wide range of ways for realizing their yearning for parenthood, for example, by means of adoption, by means of joint or shared parenting agreements, or by any other legal means. True, these possibilities are not a precise alternative to realizing of the right to become a parent by way of the process of surrogacy, but their existence means that the right is limited only in its means of realization, and it is far from being totally nullified. Hence, the harm to the right to become a parent in our case is not great. Moreover, I find that there is substance in the Respondents’ contention that removal of the requirement for a genetic link in the surrogacy process will lead to a great similarity between that process and the process of adoption. As explained by Justice N. Hendel in the Anon. case, Israeli law today recognizes parenthood on the basis of four alternative, complementary foundations – genetic link, physiological link, adoption, and a link to a link (para. 7 of his opinion). In its present format, the process of surrogacy rests on the first foundation, in view of the requirement for a genetic link. As stated, this classification therefore shows us that the genetic link constitutes a significant means of distinction between surrogacy and adoption. Unfortunately, since parenthood through a genetic link is not possible for Petitioners 5-6, this means of distinction does not exist as far as they are concerned, and therefore the alternatives of adoption and surrogacy become more similar to one another. Therefore, the harm inflicted by the requirement for a genetic link is confined and limited: it relates to one out of a number of possibilities for realizing the right to become a parent, it also affects a very particular way of realizing the right to parenthood (surrogacy with no genetic link), which is not significantly different from another way of realizing the right to become a parent (adoption). This is even more so when the particular nature of the process of surrogacy and the many dilemmas to which it gives rise are considered.

I therefore find that the requirement for a genetic link in the surrogacy process is of considerable benefit, and the harm it causes is limited. My position regarding the overall balance is that this benefit outweighs the constitutional harm that it entails. Accordingly, I have reached the conclusion that the Agreements Law also meets the third sub-criterion of proportionality, and that the harm done to the right of Petitioners 5-6 to become parents is proportional.

Summation

44.       From the above it emerges that the requirement of the Agreements Law for a genetic link complies with the limitations clause, and therefore its constitutionality is not flawed. Although the circumstances of Petitioners 5-6 arouse empathy, on the basis of all that has been said above I do not find that there is room, in the framework of the present petition, to change the principles expressed in the Agreements Law with respect to the requirement for a genetic link. I will therefore recommend to my colleagues that we deny the petition in regard to those Petitioners.

Before Concluding

45.       In the framework of this petition, the Petitioners ask that we order that the portals to the surrogacy process be opened so that also those who wish to establish a non-heterosexual family framework will be able to pass through them with pride. As stated, in view of the fact that the legislature addresses this issue in the Bill that passed its first reading last month, we have decided to allow it time and not to decide the matter at present. However, I wish to devote a few words to the existing legislative situation, and to shed some light on issues that apparently arouse more than a little discomfort.

46.       I find it hard to come to terms with a situation in which single people and single-sex couples are prevented from realizing their right to become parents by entering into surrogacy agreements when their heterosexual brothers and sisters enjoy this right. A legal arrangement that grants a right with constitutional status to one group and excludes another group because of its identity, preferences, orientations or ways of life, is an arrangement that appears  discriminatory and is hard to accept. For myself, I see no justification for preferring heterosexual parenthood over single-sex parenthood in general, and particularly insofar as the right to become a parent – in terms of all the techniques for its realization – is concerned (cf.: Mamet Megged case, paras. 5 and 10 of my opinion; Moshe case, para. 8 per Justice (emer.) E. Arbel).

This unfounded preferential treatment turns its back on the value of human dignity that appears in the Basic Laws of the State of Israel, and the principle of equality that is derived from it. Even though equality is not specifically mentioned in the Basic Laws, the principle of equality has long been recognized as part of “the soul of our entire constitutional regime” (HCJ 98/69 Bergman v. Minister of Finance [57], 698). It was accorded the status of a supra-statutory constitutional right deriving from Basic Law: Human Dignity and Liberty (see, e.g., Association of Banks case, para. 3 of my opinion; Sabah case, para. 13 of my opinion; Quality Government case, paras. 36-43 per President A. Barak), and it is a common thread running throughout the foundational documents of our State. It was Theodor Herzl who wrote in Altneuland: “Let me tell you, then, that my associates and I make no distinctions between one man and another. We do not ask to what race or religion a man belongs. If he is a man, that is enough for us.” This principle also appears in the writings of Ze’ev Jabotinsky, who stated that “human rights and citizens’ rights are the property of the person and the citizen, qua person and citizen. This is a first principle.  There is no room for negotiating or for reckoning who is entitled to rights and who is not” (Ze’ev Jabotinsky, Untitled Notes, Plitonim 23, 29 (5714-1954) (Heb.)), and it is captured in the words of the Declaration of Independence, namely, that the State of Israel “will ensure complete equality of social and political rights to all its inhabitants …”.

47.       The prohibition against discrimination on the basis of sexual orientation is one of the basic elements of the principle of equality, and Israeli law has managed over the years to weave it into the web of legislation and case law (for a review see: AAA 343/09 Jerusalem Open House for Pride v. Jerusalem Municipality [58], para. 54 per Justice I. Amit). However, our legal system has unfortunately been left trailing behind in many aspects that are at the heart of the lives of LGBT citizens, and particularly recognition and equal rights for gay partnerships and families (see: Yotam Zeira & Barak Medina, The Right to Equality and Sexual Orientation, LGBTQ Rights in Israel: Gender Identity, Sexual Orientation and the Law, 159, 176-88 (Einav Morgenstern, Yaniv Loshinski and Alon Harel eds., 2016) (Heb.)). This legal situation comprises a severe violation of human dignity, for it places a group of citizens with equal obligations and rights in an inferior position to that of the rest of Israeli society with no material justification. This violation, and the value of a legal system that is prepared to entertain change, was discussed by US Supreme Court Justice Anthony M. Kennedy, who stated in the context of a case related to our matter:

There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices […] If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied […] It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality” (Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (emphasis added – S.J.).

In the context of the subject of this petition, I had the opportunity of saying the following in the Mamet Megged case (albeit in a dissenting opinion with regard to the result):

As long as the interpretation of the Committee for the Approval of Embryo Carrying of the Embryo Carrying Agreements Law remains in force, and the Law itself has not been changed by the legislature or found unconstitutional by the Court, same-sex couples find themselves in a categorically inferior position. Unlike heterosexual couples, same-sex couples can resort to surrogacy arrangements only outside of Israel […] The policy of the Respondent in all that regards parenthood discriminates against same-sex couples, and this, alongside totally preventing same-sex couples from turning to the track of surrogacy in Israel. This general policy […] is discriminatory. This policy seeks to establish the heterosexual couple as “natural” […] This discriminatory policy, alongside the deep violation of human dignity and equality, also harms the constitutional right of every person to family life (paras. 5 and 10 of my opinion).

48. It bears saying that over and above the moral flaw involved, the distinction between heterosexual and homosexual parenthood lacks any basis in academic research that has studied the welfare of the newborn. See, for example, Triger and Mass’s article, which addressed  the various arguments raised against same-sex parenthood systematically and in depth, and shows, through broad research from different areas, that they have no basis. Thus, for example, it was demonstrated that children who are raised in single-sex families do not have particular difficulties as opposed to children who grew up in families with a father and a mother – either from the point of view of the child’s development, or from the point of view of the partnership of the parents in raising the child, as well as from other aspects (see: Triger and Mass, 448-53). Other studies have looked into and dismissed various claims concerning the apparently negative ramifications of single-sex arrangements in the surrogacy process. These studies indicate that there are good connections with the surrogate mother in the course of the pregnancy and thereafter, and they also determine that it is not possible to identify any difference between the situation of children who were born to heterosexual families and that of children born to single-sex families through assisted reproductive techniques (see: Lucy Blake, et al., Gay Father Surrogacy Families: Relationships with Surrogates and Egg Donors and Parental Disclosure of Children's Origins, 16 Fertility & Sterility 1503 (2016); The Ethics Committee of the American Society for Reproductive Medicine, Access to Fertility Treatment by Gays, Lesbians, and Unmarried Persons: A Committee Opinion, 100 Fertility & Sterility 1524, 1526 (2013); and see Moshe case, para. 23 per Justice (emer.) E. Arbel and the references there.

49.       Moreover, I am also struggling to find a relevant reason for the distinction between single women and single men in relation to realizing the right to become a parent (see and cf. HCJ 2078/96 Vitz v. Minister of Health [59]; New Family case, para. 26 per Justice M. Cheshin; Moshe case, para. 21 per Justice (emer.) E. Arbel, para. 17 per Justice E Hayut; and in the U.K.: Z (A Child) (No 2) [2016] EWHC 1191 (Fam) (20 May 2016)). It is clear that the principle of equality also extends to the difference in gender between women and men, and it seems to me, without setting the matter in stone, that limiting access to assisted reproductive techniques for one gender and not for another raises questions. Thus, for example, a distinction between men and women with respect to the realization of the right to become parents is liable, prima facie, to broadcast, even unwittingly, an approach whereby single-parent family units headed by a woman are preferable, and therefore a higher normative value is to be accorded to a single female’s yearning for parenthood than to that of a single man; it is liable to hint at a basic assumption whereby this family structure is more proper and desirable; and it may echo archaic social approaches whereby the role of a woman as a parent is more central than that of a man as a parent (cf.  Sessions v. Morales-Santana, 198 L. Ed. 2d 150 (2017); Ben-Asher, The Curing Law, 1913-15; Jean Strout, Dads and Dicta: The Values of Acknowledging Fathers’ Interests, 21 Cardozo J. L. & Gender 135, 148-149 (2015)) – and in this it may possibly reflect a discriminatory basic assumption (cf. LAA 919/15 A. v. B..  [60] paras. 103, 105, 107 per Justice U. Vogelman; my opinion in LCA 8821/09 Prozansky v. Layla Tov Production Co. Ltd. [61]).

50. We see, therefore, that the current surrogacy arrangement gives rise to considerable fundamental difficulties. With the caution required at this interim stage, I dwelt above on the substantial harm to single-sex couples and to single men, and on the shaky social-ethical basis on which the distinctions in the Law stand. In view of our decision to postpone our ruling on the petition in order to allow for completion of the legislative process, this is neither the place nor the time to deliberate on the merits of the arguments presented by the Respondents in their response to the petition. However since we cannot suffice by leaving the matter without comment, I will note – without making any firm determination – that although I listened attentively to the Respondent’s arguments and considered them carefully, I was left with an uncomfortable feeling as to the compatibility of this arrangement with the values of the Basic Laws and their provisions. Those who are involved in this very weighty matter must consider this.

Conclusion

51.       In this decision, we are postponing determining the very important issues that I addressed above. We do so out of respect for the legislature and for the relationship between the judiciary and the legislature. This relationship is a complex one, based on dialogue between the Court and the legislature. This dialogue turns on the basic principles and the laws of the State of Israel. In that framework, the two branches aspire to advance the goals of the State and address the challenges that face  it in an optimal manner, while preserving the basic rights of every person by virtue of the Basic Laws. At the end of this dialogue, the expectation is that a legal result will be achieved that is in keeping with the fundamental principles of the State and that protects individual freedoms. At present, it is the turn of the legislative branch to have its say. Presumably it will fulfill its constitutional obligations and act to realize constitutional rights (see, at length: Aharon Barak, The Constitutional Right to Protection of Life, Body and Dignity, 17 Law and Government 9, 16-19, 29-27, 31-35 (5776-2016) (Heb.)). As always, this Court will listen very carefully to what the legislative branch has to say. And as always, its doors will be open and its ear bent to any person who claims that his constitutional right has been violated. This is so in regard to the further handling of the present petition, as well as to future petitions.

 

President M. Naor

1.         I concur in the opinion and decision of my colleague Deputy President S. Joubran, and will add just a few of my own comments.

2.         In the course of the deliberations on the petition before us, the State announced that the Ministry of Health wishes to advance an amendment to the Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) Law, 5756-1996 (hereinafter: Agreements Law), which will also enable single women to enter into surrogacy agreements. Several days ago, the State updated us on the progress of the legislative process and noted that the bill to amend the Agreements Law (Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) (Amendment no. 2) Bill, 5777-2017 (hereinafter: the Bill) was due for a vote on the first reading that same day (July 17, 2017). Indeed, the Bill passed its first reading that day, and was sent for further discussion to the Labor, Welfare and Health Committee of the Knesset for the purpose of preparation for its second and third readings . Under the circumstances, passage of the Bill in its first reading and it being sent for preparation for its second and third readings created a new situation. At the time, we did indeed express our displeasure at the way in which the Respondents conducted themselves in this process, which expressed itself in submitting a memo of the Bill at the last minute, on the eve of the oral hearing. Now, however, this has indeed come to pass. Accordingly, we have decided as stated by Deputy President Joubran, not to decide at the present time on the issue at hand (other than in relation to the constitutionality of the requirement for a genetic link). This means that we who have or will soon have completed our tenure on the Court – my colleague Deputy President (emer.) Rubinstein, Deputy President Joubran and myself – will not be party to the final judgment, insofar as one may be necessary after the exhaustion of the legislative process. We are a “house of judgment” and not a “house of judges.”

3.         As a rule, a court may address the legal questions before it even when a bill on that same subject is pending in the Knesset (see and cf.: FH 25/80 Katashvili v. State of Israel [62]; HJC 6665/12 A. Sig Ltd. v. Director General of the Ministry of Health [63], para. 27 per Justice M. Mazuz). At the same time, in light of the principle of mutual respect among the branches if government, in relevant cases it is appropriate to refrain from competing with the legislature, and to give the Knesset the opportunity to complete the legislative process within a reasonable time (cf.: HCJ 8893/16 Cabel v. Minister of Communication [64], in which we granted the State’s request for an extension of the period for submitting a response due to the progress of legislation that would have affected the petition there). It is appropriate to do so in the present case, particularly considering the complexity of the issues that have been raised in the petition and the advanced stage of the legislative process. I will not deny that the Respondents have refrained from estimating when the legislative process is expected to be completed, thus giving rise to concern that they will not make progress as required (and cf. other cases in which consideration of petitions was postponed for many months, and even years, until the completion of the legislative process: HCJ 5436/07 Movement for Quality Government in Israel v. National Authority for Religious Services [65], ; HCJ 8300/02 Nasser v. Government of Israel [66], paras. 2-5 per President (emer.) D. Beinisch). Moreover, the Bill in its present formulation does not provide a response to the Petitioners, and on reading the responses of the Respondents one can cautiously surmise that the chance of this changing is not great. To this must be added the fact that when realization of the right to parenthood is at stake, prolongation of the proceedings is liable to lead to an irreversible situation. Finally, it must be borne in mind that the Agreements Law was enacted more than 20 years ago, and since then it has been deliberated in various legal proceedings, in some of which reservations were expressed regarding its scope. In recent years, there have even been attempts – unsuccessful – to amend it. For this reason, and in view of the additional considerations mentioned above, I believe it right to rule, as proposed by Deputy President Joubran, that the Respondents must submit notice of the progress of the legislation within six months.

4.         Notwithstanding the above, and considering the fact that this petition has been pending for several years and oral argument has been heard in this Court, I would like to address briefly the definition of “prospective parents” in sec. 1 of the Agreements Law. What I will say is in the category of musings alone, and cannot limit the discretion of the justices who will replace us in these proceedings, if it should be necessary. What I am about to say is directed at the ears of the legislature as considerations that would seem to warrant attention.

5.         The Agreements Law was originally intended to provide a solution to a limited number of childless couples, while preserving the rights of all those involved in the process – first and foremost the surrogate mother (see: Report of the Mor Yosef Committee, at 53-54); New Family case [9], 434-35, 442-43; HCJ 625/10 A. v. Committee for the Approval of Embryo Carrying [67], para. 8 per Deputy President E. Rivlin). This being the case, the application of the Law was confined to prospective parents who are “a man and a woman who are a couple, who can never bring children into the world due to a physiological condition that prevents the woman from carrying a child or when pregnancy poses a risk to her life.” Several constitutional petitions have been submitted against the Law in the past – now is not the place to go into details – which in turn led to the establishment of various public committees. The latest committee to deal with this subject, including the question of expanding the circle of those eligible for surrogacy, was the Mor Yosef Committee. The Report of the Committee (submitted in May 2012) stated that “the Committee has been convinced of the strong desire of same-sex couples to bring children into the world and has heard that they regard surrogacy as having great potential … [that] constitutes a good solution … in light of the fact that it preserves the genetic link to one of the partners …” (at 57). Accordingly, the Committee assumed that in the absence of other significant interests, single men and women should not be prevented from bringing children into the world by way of surrogacy. However, the Committee also specified several opposing considerations: first, the concern was expressed that surrogacy would change from a specific solution for particularly difficult medical cases into an accepted way of bringing children into the world, and as a result it would be difficult to safeguard the well-being of the surrogates. Second, the concern was expressed that opening up surrogacy to broad populations would come at the expense of women who are suffering from a medical problem. Finally, there was a concern that broadening the scope of those eligible for the procedure would turn surrogacy into a solution only for the rich. In view of these considerations, the Committee ultimately recommended distinguishing between women and men in the sense that men would be permitted to enter into surrogacy agreements on an altruistic basis alone.

6.         In the petition before us, the Respondents explained that, in their view, expanding the scope of those eligible for surrogacy requires legislation. At the same time, they argued, in light of the considerations mentioned in the Mor Yosef Report, there is apparently a relevant distinction between single men or male couples and between women who suffer from a medical problem. Accordingly, as stated above, the Bill that is being considered seeks to expand the circle of those entitled to surrogacy to single women only. In my opinion, there is substance to the approach that entering into surrogacy agreements should be permitted only in a controlled fashion, and to the argument that turning surrogacy into the “major route” for bringing children into the world is problematic. Surrogacy involves health and emotional risks to the surrogate, and in certain cases it is also liable to spill over into exploitation of women and their objectivization (see: Nuphar Lipkin and Etti Semama, From Worthy Act to an Off-the-Shelf Product: Creeping Normativization of Surrogacy in Israel, 15 Mishpat u-Mimshal 435, 442 (5773-2013) (Heb.) (hereinafter: Lipkin & Semama)). These risks, which are inherent in the surrogacy process, were raised before the Mor Yosef Committee and they figured in their recommendations. Indeed, one cannot ignore the physical, emotional and ethical difficulties that are liable to arise in the surrogacy process. Nevertheless, since entering into controlled, monitored surrogacy agreements has been permitted in Israel, I see no apparent justification for distinguishing between women with medical problems and single men or male couples in this matter. These two groups are not able to bring children into the world other than by artificial insemination and reproductive techniques. At the same time, we have not been shown factual data indicating that expanding the arrangement in the Law would necessarily lead to a significant increase in demand for surrogacy in Israel. Apart from gender, there is therefore no material difference between the groups. In all events – and this is the main point – both the Mor Yosef Committee and the Respondents themselves did not argue that such a difference exists (and see and cf. also: Mamet Megged case). The considerations of the Committee, like those of the Respondents, focused, as we have said, on the extent of the demand for surrogacy and the risks this entails. However, it seems right to solve these problems in an egalitarian manner. For example, it is possible (and maybe desirable) to tighten up the control and monitoring of the surrogacy process and to improve the terms of these agreements (see: Lipkin & Semama, at 490-97). Furthermore, it is possible to limit the number of times that a couple or an individual are permitted to enter into a surrogacy agreement, or to prohibit the surrogacy process in the case of a person who already has a child (see also: sec. 5(b) of the Bill). Similarly, the possibility exists of prohibiting commercial surrogacy, and to permit only altruistic surrogacy, as is the practice in some European states (but see: Report of the Mor Yosef Committee, in which it was recommended by majority opinion to permit commercial surrogacy in Israel, at 61-62; and cf. sec. 15 of the Organ Transplant Law, 5768-2008). In the final analysis, even though approval of surrogacy agreements is no simple matter, prima facie it would seem that there is no difference between women and single men or male couples that justifies discrimination. Let me again emphasize that I am not laying down the law on the present issues. These are only comments as I see things. In any case, the legislature, which must now address these issues, will have to think about them. Insofar as the legislative processes in the Knesset are not concluded within reasonable time, the subject will return for adjudication before this Court, which will deliberate and decide as it sees fit.

7.         With respect to the constitutionality of the requirement for a genetic link as a condition for entering into a surrogacy agreement, I accept the ruling of Deputy President Joubran that the requirement of the Law that there be a genetic link between one of the prospective parents and the child meets the criteria of the limitations clause. Bringing a child into the world without a genetic or physiological link to the prospective parent gives rise to complex social, ethical and moral questions, and providing an answer to these questions in a courtroom is liable to entail broad consequences that have not been elucidated in the present proceedings. Unlike surrogacy with a genetic link, which has been discussed from every perspective over the years, in the courts and by other institutional actors, discussion of the issue of reproduction without a genetic or physiological link has not yet been exhausted. This is even more evident in view of the position of the Mor Yosef Committee, which saw fit to recommend expanding the circle of those eligible for surrogacy as long as a genetic or physiological link exists with at least one of the prospective parents. I therefore accept the position that in relation to the issue of the genetic connection, the petition should be denied. It is important to clarify, however, that our decision on this subject does not, of course, prevent the legislature from considering it, like any other matter, in the framework of the ongoing legislative process. I will also mention, with the required caution, that one cannot rule out in advance a situation in which, as a result of particular changes that may occur in the future, the legislature will once again be called upon to address this issue. I do not make light of the plight of the Petitioners. Indeed, as I have said in the past, the very fact that there are different ways to become a parent does not necessarily mean that the state must allow the realization of them all (Moshe case, para. 2 of my opinion). At the same time, without laying down the law on issues that are pending in other proceedings (see, e.g., HCJ 3217/16 Israel Religious Action Center – The Movement for Progressive Judaism in Israel v. Ministry of Welfare and Social Services [68], which deals with the scope of those entitled to adopt children), we should strive for alternative solutions that will enable the Petitioners to realize their right to parenthood.

8.         To summarize: I concur in the opinion of my colleague Deputy President Joubran, whereby the petition concerning the requirement for a genetic link must be denied. As for expanding the circle of those eligible for surrogacy to include single males and male couples, at the present stage this issue should remain without a final decision due to the ongoing legislative processes and taking into account the principle of mutual respect between the branches of government.

 

Deputy President (emer.) E. Rubinstein

1.         I concur in the outcome reached by Deputy President Joubran. The issues that arise for deliberation in this case add to the human, social and legal complexity that has been created in the present era, in which technological developments in the medical field on the one hand, and social developments in the area of family on the other, have engendered situations that our forefathers could not have imagined. In HCJ 407712 A. v. Ministry of Health [30], I had the opportunity, in a different context, to say the following (para. 2):

The "genetic era" and the increasing use in recent decades of artificial reproductive techniques have brought a real blessing to many who would have remained childless "in the old world". Reality has changed immeasurably, and technology presently enables many of those whose path to parenthood was previously blocked, to bring children into the world and have a family. This is one of the dramatic developments, which creates a new social and legal reality, and gives rise to complex, sensitive human questions. The legal world has not yet had the time to properly address these issues, and it falters behind them…

This “faltering along” continues to this day, and therefore issues arise such as the one before us. There are no bounds to a person’s desire for a child. My colleague Justice Barak-Erez, at the beginning of her opinion in the above case, quoted from the poem “Barren” by the poet Rachel: “A son! If I only … had one little boy, Dark, sable-curled and so smart …”; and I would add from the end of the poem: “But I’ll still weep like Rachel the Mother. And I’ll still plead like Channah at Shiloh. I’ll await him. I’ll await…”. Whose heart would not identify with this prayer?

2.         The point is that these issues, which change the known reality, such as the situation of single women and men and same-sex couples, should in principle be addressed by the legislature, which sees the entire picture in all its aspects. My colleague (in para. 6) quoted from the Moshe case (para. 46), and I will repeat what he said in order to complete the picture:

In any event, the existence of current legislative proceedings to expand the existing circle of eligibility in the Surrogacy Law naturally and sensibly calls for judicial restraint by this Court, so it will not trail behind the legislature (para. 17 of Justice Hayut’s judgment; HCJ 9682/10, Milu’off Agricultural Cooperative Association Ltd. v. The Minister of Agriculture – Ministry of Agriculture and Rural Development (2011)). Of course, were there ultimately not to be legislative processes, constitutional judicial intervention must not be ruled out of the realm of possibility. I do agree with my colleague Justice Arbel’s words in her judgment that “legislative arrangements must be interpreted to fit with the principle of equality which demands the equal treatment of same sex couples” (para. 10.) However, the appropriate port of call for such changes is, first and foremost, the legislature, and the existence of advanced legislative processes warrants such judicial restraint.

These words appear to me to be in keeping with what my colleague has now proposed, that is, postponement of the decision at a time in which the legislature is acting as reported. I support his proposal, and the constitutional arguments will be reserved for the petition when it comes.

3.         I also concur in the determination as to the importance of the genetic link, for it seems to me that anyone reading the judgment in the Moshe case cannot fail to form the impression that its basic assumption is genetic parenthood for the purpose of the Agreements Law, alongside severance between the surrogate mother and the prospective parents. It is true that the “genetic model,” which was the focus of legislation in the past, has been weakened to a certain degree (see in detail the above A. v. Ministry of Health. case, para. 44), but the genetic link still carries great weight (para. 45).

4.         I will conclude with the comment that regarding all the subjects raised by my colleague at the end of his written opinion, there is room for gradual progression in order to arrive at appropriate, correct results from the overall social aspect as well. This Court should, in my opinion, address these issues while observing the progress of the legislation, without slamming the door on judicial intervention. I will only mention that, on the one hand, the Mor Yosef Committee recommended expanding the circle of those eligible for surrogacy to single women, while on the other hand, it recommended the establishment of altruistic surrogacy for single men. However, the memorandum of the Law that was submitted at the time – which differs from the present one with the change of Government – expanded the circle of those eligible for commercial surrogacy to include single men as well (see my opinion in the Moshe case, para. 45). The reason given by the Committee – that expanding the circle may numerically limit the possibilities available for single women – bothered me, even upon carefully reading what my colleague Deputy President Joubran and my colleague the President wrote, and their thoughts regarding a solution. As for myself, I think that, in general, a committee is established in order that its conclusions be adopted, unless it has clearly deviated from what is reasonable. But of course, the legislature is permitted to think differently and act differently. On the other hand, there is the question of equality, which is no small thing: we are all created imago dei, nor does time stand still, socially and personally.

5.         This judgment, in its various opinions, comprises recommendations – even if cautious – to the legislature. In order to “glide over the lips of sleepers” (Song of Songs 7:10), and to show the progress that has been made by Israeli law, I would like to cite a summary of a memo written by Supreme Court President Itzhak Olshan during his tenure (1954-1965 – the date of the memo is unknown), who is quoted by Professor Pnina Lahav in her article, The Pains and Gains of Writing the Biography of Chief Justice Simon Agranat, Harris, Kedar, Lahav & Lichovski (eds.), The History of Law in a Multi-Cultural Society (2002) 147, 157-158. I cite these words not due to agreement with their content, but as an historical comment. President Olshan wrote (I do not have the original Hebrew text) – and according to him the subject had already arisen in discussions with judges in the past – that it is not recommended to make recommendations in a written opinion (he does not explain exactly which recommendations he means, and it may not necessarily be only legislative recommendations), particularly not in criminal matters. He says that it puts the authorities in a difficult position, for if they do not accept the recommendation, they are liable to be seen as offending the Court. On the other hand, the authorities may have good reasons for not accepting the recommendation, but they will be seen as offensive. President Olshan says that he raised the subject because he had been approached on the matter. Prof. Lahav, the author, notes that the memo is of interest both because it refers to informal connections between the governmental branches, and because although President Olshan was very careful to preserve and fight for judicial independence, he also preserved the relationship with the executive branch and was prepared to deliver its requests to the judges. She points out that the proclivity of courts for writing recommendations is common; it is something that could be said to contradict the principle of separation of powers, but on the other hand it could be seen as a “safety valve” attesting to the discomfort of the Court in applying a particular law as against considerations of justice, and prohibiting it would dilute judicial opinion and prevent the Court from sounding a moral voice. According to the author, the justices did not comply with the “rebuke” of the President, but the very fact that the memo was issued is an indication of the leadership of President Olshan.

As I noted, I cited these words as an historical comment, although I disagree with the position expressed in the memo, and I would add that in my opinion, on the basis of long years of practice and common sense, it is absolutely inappropriate to withhold judicial recommendations that are generally based on long professional, institutional and personal experience, and on consideration of the distressing situations that the Court encounters. On the contrary, the fifty years that have elapsed since President Olshan retired have shown us that there was and is great value to judicial recommendations. Many of them have found their way into legislation and governmental actions, and have contributed to their improvement. Even if caution is wise in making recommendations on matters of principle that are controversial, lack of action on the part of the legislature sometimes compels the Court to have its say. In any case, in general, not only is there nothing wrong with making judicial recommendations, but they are a good thing, for the benefit of all. The dialogue between the branches is important – that is the nature of democracy. The ability to listen is invaluable, and it is of course multi-directional. The spirit of our generation in the context of judicial recommendations was aptly described by Justice Melcer in describing academic discourse (see: Desta case, paras. 6-7 of his opinion, and the references cited there).

6.         I will conclude with what I wrote in the Moshe case (para. 23):

It is quite possible that there is a social need, in light of the rapid developments in the area of relationships as experienced in our world, for eliminating the requirement for the recipient’s medical need as established in section 11 and this in light of the desire to expand the circle of those eligible for an egg donation – for example, in the Petitioners’ case or the case of single men or a male homosexual couples who need the donation as a result of an inherent biological deficit (Haim Avraham, On Parenthood, Surrogacy and the State between Them, forthcoming in 8 Hukkim (2015) (hereinafter: Avraham)), or to resolve the issue of bastards (Yossi Green, Is There Resolution for the Problem of Bastards through Medical Technologies in the Field of Reproduction?, 7 Moznei Mishpat 411 (2010)). This expansion lays first and foremost in the hands of the Legislature, which is charged with weighting the balances..

Subsequently, it was said that there is a need (in that context) for a “guide” in the form of statutory directives, which would not require any great legislative effort. This applies, mutatis mutandis, in the present case. The last word has not yet been said.

7.         This judgment is being handed down on the day of the retirement of my good friend, Deputy President Selim Joubran. I have merited to serve alongside him in friendship and with affection throughout the whole period of our tenure, since we were sworn in on the same day in 2004. Deputy President Joubran – a proud Israeli, a proud Christian Arab – has in the period of his tenure made a great contribution to Israeli law and Israeli society, both with his substantive jurisprudence in his learned opinions, and with his incomparably amiable personality as a colleague, a friend, and a public personality. The “golden mean” approach that he represented in the law, which is particularly close to my heart, has contributed greatly to the peaceful settlement of conflicts, as a lover of peace and a pursuer of peace. May my friend continue in the ways of peace, of health and of contentment.

 

Justice E. Hayut

1.         What is the appropriate scope of the circle of persons eligible for assistance through the surrogacy process in Israel?

This is an issue that the Petitioners have once again laid at the door of this Court in the present petition. The petition raises arguments against the constitutionality of the arrangement provided in the Agreements Law, most of which concern the violation of the right to parenthood and the right to equality of single-sex couples (Petitioners 1-4) and men and women who do not have partners (hereinafter: single men and women), including women who, due to the inability to become pregnant or to donate their own ovum to the reproductive process (Petitioners 5-6) will not have a genetic link to the child as required by sec. 2(4) of the Agreements Law.

2.         This Court first considered the matter of the appropriate scope of those eligible for assistance through the surrogacy process in the New Family case, but this was in one single derivative only – a single but fertile woman who was not able to become pregnant and give birth. The judgment determined by majority opinion that denial of the right of a single woman to be included within the definition of “prospective parents” in the Agreements Law, and confining the process of surrogacy under the Law exclusively to “a man and a woman who are a couple”, appeared to constitute a violation of the principle of equality and discriminated against women such as the petitioner without justification. At the same time, the Court denied the petition for the reason that it dealt with a “new and complex” issue that should be developed gradually, in small steps, through legislative processes and not by way of case law that intervenes in the legislation of the Knesset. In the New Family case, the Court therefore confined itself to a call to the legislature to the effect that –

… it think about the plight of single women such as the Petitioner; that it give serious consideration, weighing one against the other, the reasons for and reasons against the application of the Law to single women; and that it decide on the merits of the question one way or another. Indeed, the plight of single women is genuine, their plight is not less than that of couples, and those single women deserve to have the legislature think specifically about them and about the prohibitions it placed on their path to surrogacy (at 461) (for an analysis of the status of calls such as this on the part of the Court to the legislature, see: Liav Orgad and Shai Lavi, Judicial Directive: Empirical and Normative Assessment, 34 Tel Aviv L. Rev. 437 (2011) (Heb.)).

3.         More than 14 years have passed since judgment was rendered in the New Family case, but the definition of “prospective parents” in the Agreements Law has remained unchanged. As pointed out by my colleague Deputy President Joubran, some 8 years after the judgment in the New Family case, the Director General of the Ministry of Health appointed a public committee to examine the statutory regulation of the subject of fertility and reproduction in Israel, and this committee submitted a report in May 2012 (the Mor Yosef Report) in which it recommended, inter alia, to expand the circle of those eligible for assistance through surrogacy under the Agreements Law to include a single woman who has a medical condition preventing her from becoming pregnant, and a single man (with respect to whom it was recommended to permit only an altruistic surrogacy track). Also, in 2014, in the wake of the Mor Yosef Report, a governmental bill was formulated which expanded the circle of those eligible for surrogacy in Israel such that both single women and men would be able to employ the process for payment in Israel (Embryo Carrying Agreements (Approval of Agreements and Status of the Newborn) (Amendment no. 2) Bill, 5774-2014). However, this Bill was not moved forward, and when the rule of continuity was not applied to it, it lapsed.

4.         The present petition was submitted on Feb. 2, 2015. On July 17, 2017, after we – sitting as an expanded bench – had completed hearing the objections to the order nisi that had been issued, we were informed that the Embryo Carrying Agreements (Approval of Agreements and Status of the Newborn) (Amendment no. 2) Bill, 5777-2017 (hereinafter: the Bill) had been published and introduced in the Knesset on July 5, 2017. Under this Bill, the circle of women eligible for surrogacy in Israel would be expanded to include single women who suffer from a medical problem that necessitates undergoing the process, on condition that the genetic link between the prospective mother and the newborn is preserved. We were also informed that the Bill had passed its first reading and was sent to the Labor, Welfare and Health Committee of the Knesset for preparation for its second and third reading.

5.         In view of the conduct of the legislature regarding this issue over the years, it may be assumed that our deliberations on the present petition served as a fairly significant accelerant in the present legislative process. At the same time, and even though the Bill currently under consideration is more limited than the 2014 version (it does not include single men), I agree with my colleague Deputy President Joubran and with my colleague President Naor that at this stage, we should not enter into a “race” with the legislature, which should be allowed to complete the legislative process before we decide on the present petition insofar as it concerns Petitioners 1-4, given the principle of mutual respect between the branches by which we should abide. I therefore concur in this context in the position of my colleagues that we postpone handing down a judgment on the petition (insofar as it concerns Petitioners 1-4) for a period of six months, in order to allow the Knesset to complete the legislative process that it has begun.

6.         As opposed to this, like my colleagues, I too am of the opinion that with respect to Petitioners 5-6, the petition should already be denied at this stage.

As will be recalled, Petitioners 5-6 (hereinafter: the Petitioners) are single women who, due to medical problems are not able to carry a pregnancy nor are they able to donate their own ova for the purpose of fertilization and implantation into the womb of a surrogate. As described in the petition, Petitioner 5 has no children, and after attempts to become pregnant from fertilized ova implanted in her womb were not successful, her doctors determined that she could not become pregnant. Petitioner 5 is in possession of several frozen fertilized eggs that were prepared in the framework of her earlier attempts to become pregnant, and after she was told that she would not be able to carry a pregnancy herself, she turned to Respondent 1 (hereinafter: the Committee for Approval of  Embryo Carrying or the Committee) with a request to allow her to embark on a process of surrogacy using these ova. The Committee for Approval of Embryo Carrying rejected Petitioner 5’s request outright, due to her personal status as a single woman and due to the provision of sec. 2(4) of the Agreements Law that makes the process of surrogacy conditional upon the existence of a genetic link between the prospective parents and the child. Petitioner 6 is also a single woman who, as the result of a medical issue, cannot carry a pregnancy, nor can she donate her own ova for the purpose of surrogacy. Petitioner 6 has one child who was born after she became pregnant through the donation of another woman’s ovum that was fertilized by a sperm donation. After she gave birth to her son, Petitioner 6 was told she would not be able to carry further pregnancies, and that several fertilized ova remained carrying the same genetic load as that of her son. Petitioner 6, too, approached the Committee asking to be allowed to embark upon the surrogacy process, in the framework of which those fertilized ova would be implanted in the womb of the surrogate mother. The Committee also rejected the request of Petitioner 6 for the same reasons as those grounding its rejection of the request of Petitioner 5. Alongside the arguments common to them and to the other Petitioners regarding the discriminatory definition of “prospective parents” in the Agreements Law, the Petitioners further argue that denying the possibility of surrogacy  to a person who has no possibility of having a genetic link to the child, as provided in sec. 2(4) of the Agreements Law, violates the right to parenthood and to equality, and that for them, this causes harm in addition to the harm caused to them by virtue of their being single women.

7.         This Court has not infrequently discussed the importance attributed by society to the human desire of many for progeny who will carry their genetic material and who will be related to them “by blood” (see: New Family case, 447; CA 488/77 A.. v. Attorney General [69], 441-42; and see further in this context: Yehezkel Margalit, The Rise, Fall and Rise Again of the Genetic Foundation for Legal Parentage Determination, 3  Medical Law and Bio-Ethics 125 (5770-2010) (Heb.)). Now, as I pointed out in one of the cases in another context:

The biological-genetic connection between parent and child is not the be-all and end-all. No less important (and sometimes even more important) “raw material” constituting and fashioning the relationships between parents and their children is the emotional link and the commitment to the well-being of the children and raising them. At the same time, and has already been mentioned, real and significant justification is required in order to deny a person the possibility of realizing the right to parenthood that includes a blood tie between himself and the child (Moshe case, para. 33 of my opinion); see also Yehezkel Margalit,  Determining Legal Parenthood by Agreement as a Possible Solution to the Challenges of the New Era, 6 Din u-Devarim 553 (2012) (Heb.); Yehezkel Margalit, Towards Determining Legal Parenthood by Agreement in Israel, 42 Mishpatim 835 (2012) (Heb.)).

It may also be said that the medical limitations due to which the Petitioners are unable to form a genetic link to the child, alongside their single status, places them in certain senses at the top of the ladder of those who encounter difficulty in realizing their right to parenthood. However, the question facing us is not whether realization of the right to parenthood must be allowed in the case of a person who cannot have a genetic relationship with a child, but whether that person should be allowed to realize this right by way of the process of surrogacy under the Agreements Law.

8.         In the New Family case, Justice M. Cheshin said as follows:

… people are not always ready and able to absorb and digest the achievements of science and technology. This is the general case. A fortiori in relation to the subject of surrogacy, in which the most sensitive and intimate aspects of a person are involved.

            Justice Cheshin further mentioned there that in view of the novelty and the complexity of the issue of surrogacy from various perspectives, it is appropriate that this process develop in a gradual, proportionate manner (at 459-60). Indeed, the issue of the scope of the circle of persons eligible to realize the right of parenthood by means of surrogacy is a complex one that involves medical, social and ethical considerations, the sensitivity of which cannot be overstated. This applies to the process of surrogacy in general, and all the more so where the prospective parent lacks a genetic link to the child. First, in the absence of a genetic link, we are not concerned with denying a person the possibility of realizing parenthood that includes a blood relationship between himself and the child. It can therefore be said that the prospective parent has no special interest in bringing a child into the world by way of surrogacy in particular. In effect, it can be said that absent a genetic or physiological link to the prospective parent, we are dealing with the production of children for the purpose of adoption (see: Anon. case, paras. 25-26 per Justice N. Hendel; and Mor Yosef Report, at 6 and 61 (note 28)). And insofar as the matter is one of a variation of adoption, the question naturally arises why the prospective parent, who has no particular interest in the process of surrogacy, should not be directed to the adoption track, with all its advantages from the point of view of benefitting children who already exist.

Similarly, in this context of surrogacy  with no genetic link, ethical questions that are not simple arise concerning, inter alia, the possibility of creating children who are in certain senses “children by order”, with all the ramifications from the point of view of the surrogate mothers who participate in the process; questions about “industrialization” of these processes; and concerns about a concept of property taking root with regard to children created in this framework (Lipkin and Semama, 441-43). As my colleague the President pointed out, it may not be right to rule out in advance the possibility of considering the process of non-genetically linked surrogacy in the future, and it may be that the experience that will continue to accumulate regarding surrogacy in Israel and the world  will warrant legislative reconsideration of the issue. However, like my colleagues, I too think that the petition does not show constitutional grounds for striking down the provision of sec. 2(4) requiring such a link. This is similar to the approach adopted in this context in most states that permit surrogacy, and respectively, to the approach adopted by the Israeli legislature in additional statutes that attribute importance to the genetic link in the context of parent-child relationships (see paras. 25-26 per Deputy President S. Joubran).

9.         In summary, I concur in the opinion and decision of my colleague Deputy President S. Joubran.

 

Justice H. Melcer

1.         I concur with the result reached by my colleague Deputy President S. Joubran. I choose not to express a detailed opinion with respect to his main reasoning, for in view of what appears in the decision part of my colleague’s opinion, I am likely to deal further with this petition, alongside my colleague Justice Hayut (and other justices who will join the panel).

Nevertheless, I will permit myself to make several comments regarding the right of Petitioners 5-6 (in relation to whom the petition is denied) to realize their aspiration for parenthood by way of surrogacy, specifically in the legal situation pertaining at present and the future, and concerning the link between legislative initiatives and the case law of this Court.

I will discuss these subjects in their order.

The right of Petitioners 5-6 to realize their aspiration for parenthood specifically by means of surrogacy

2.         Petitioners 5-6 wish to realize their aspiration for parenthood by means of surrogacy, without having a genetic link (their ova) or a physiological link (pregnancy) to the child.

In LFA 7141/15 A. v. B. [23], I explained the similarity and the difference between the right to parenthood (which is not necessarily biological) and the right to continuity (which is at base genetic). Both these rights are in my view constitutional rights, as I explained there.

In the present case, Petitioners 5-6 wish to obtain approval to enter into an agreement with a “surrogate mother”, but various provisions in the existing Agreements Law stand in their way, including the requirement for a biological link, as expressed in sec. 2(4) which provides as follows:

The implantation of a fertilized egg for the purpose of impregnation of a surrogate mother in order for the child who will be born to be given to prospective parents will not be performed unless all the following are fulfilled:

….

(4)                   The sperm used for the in vitro fertilization is that of the prospective father and the ovum is not that of the surrogate mother.

These provisions indeed violate the rights of Petitioners 5-6 to parenthood, but as my colleagues showed, it cannot be said that the requirement for a genetic link, in this context of surrogacy, fails with respect to the criteria of the limitations clause. However, the right of Petitioners 5-6 (and others like them) to parenthood may possibly be realized in other ways that do not require a genetic link.

Moreover, in the case of Anon. [11], I called upon the legislature to consider finding a means for helping those belonging in this category. This is how I stated it there:

Thus, just as in the past, the institution of adoption provided for the problem of childlessness, now it can be expanded, either to enable individuals who have no available alternative … to resort to new medical technologies in order to become parents, or to be considered such, even without a genetic link …Following these paths is intended to provide a response to a reality within which technology usually precedes the law. The legislature and the courts are therefore asked in these cases to pour the essence of the good, well-grounded existing principles into legal containers that have not been in use before (as if these were old wine that improves over time and simply requires a newer container). Cf.: Steven Breyer, Active Liberty 64 (2009); see also my opinion in CA 9183/09 Football Association Premier League Ltd. v. Anon. [48] (13.05.2012)).

3.         In conclusion: my heart goes out to Petitioners 5-6 to whom we could  not extend more help in this process, given the existing legal situation. Nevertheless, I would point out that this does not detract from the possibility on the part of the said Petitioners to present their case and the interests of those like them to the Knesset during the deliberations that are to be held in the Labor, Welfare and Health Committee (hereinafter: Labor Committee) in preparation for the second and third readings of the Embryo Carrying Agreements (Approval of Agreements and Status of the Newborn) (Amendment no. 2) Bill, 5777-2017 (hereinafter: the Bill) that was introduced in the Knesset on  July 5, 2017 and passed its first reading on July 17, 2017.

4.         Owing to the fact that the Bill passed its first reading, the Respondents requested that we not decide upon the petition, and we have granted this request partially, as described in the opinions of my colleagues. On this issue of the constitutional dialogue, which is important, I will add several comments below, as a type of introduction for the future.

 

The ramifications of legislative initiatives for pending processes

5.         In principle we (as well as the administrative authorities) are supposed to decide according to the existing law. See: HCJ 3872/93 Mitral Ltd. v. Prime Minister and Minister of Religion [70]. However, over the years exceptions to this rule have emerged. A comprehensive discussion of them appears in a recently published article: Bell Yosef, A Mixed Blessing – The Normative Status of Legislative Initiatives, 40 Tel Aviv U. L. Rev. 253 (2017) (Heb.). See also: Aharon Barak, Partnership and Dialogue between the Legislative and the Executive Authority and the Judiciary, 4 Moznei Mishpat 51, 68 (2005) (Heb.); Barak Medina, Strategic Considerations behind Normative Explanations: Lessons from Israel’s Supreme Court Expropriations Case: A Reply to Haim Sandberg, 11 Int’l J. Const. L. 771, 773-776 (2013); Alison L. Young, Democratic Dialogue and the Constitution (Oxford University Press, 2017) (hereinafter: Young)).

A related issue concerns the question of whether the reviewing court should give directives to the legislature when it strikes down a law – how to legislate a future law that will be immune, as it were, to constitutional judicial review ‒ or whether it should confine itself to a constitutional analysis of the new law that will be brought before it, after the legislature has had its say.

In the Desta case [1], I discussed this question and said as follows:

There is much theoretical discussion of the dialogue between the judiciary and the legislature that develops in such situations (for the theoretical literature on the subject, see the article by Liav Orgad and Shay Lavie,  Judicial Directive: Empirical and Normative Assessment, 34 Tel Aviv U. Law Review 437, 440 (2011) (Hebrew) (hereinafter: Orgad & Lavie, Judicial Directive), and see: Ittai Bar Siman-Tov, The Puzzling Resistance to Judicial Review of the Legislative Process, 91 B.U. L. Rev. 1915, 1954-1958 (2011); Aharon Barak, The Judge in a Democracy 382-389 (2004) (Hebrew) (English: Princeton, 2008) ; Gideon Sapir, The Constitutional Revolution in Israel: Past, Present & Future 219-222 (2010) (Hebrew)).

            The answers to this question can be classified into three categories, although the dividing line between them is sometimes blurred (the analysis, references and presentation below are based upon the article Orgad & Lavie, Judicial Directive):

(a)        One model is that of “judicial advice”. Judicial advice is an approach that allows the judge to recommend necessary legislative changes to the legislature. It does not express a demand, but rather a legal preference, while leaving discretion to the legislature (compare: Nitya Duclos & Kent Roach, Constitutional Remedies as "Constitutional Hints": A Comment on R. v. Schachter, 36 McGill L.J. 1 (1991)).

(b)        A second model is that of the “constitutional roadmap”. The constitutional roadmap is a technique that allows the judge to recommend to the legislature, expressly or impliedly, how to overcome the defects in the current law. In the constitutional context, it constitutes a sort of recommended path to correcting the constitutional defect found by the court (see: Erik Luna, Constitutional Road Maps, 90 Crim. L. & Criminology 1125 (2000)).

(c)        A third model is the “fire alarm”. The fire alarm is a technique that allows the judge to warn the legislature of defects in the current law. In the constitutional context, this concerns cases in which the court just barely accepts the constitutionality of the law, but explains that although the law is “still constitutional”, it may become unconstitutional in the future (see: Neal Kumar Katyal, Judges as Advicegivers, 50 Stan. L. Rev. 1709, 1719 (1998)).

7.         In Israel, in HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance, IsrSC 51 (4) 367, 412-413 (1997) (hereinafter: the Investment Managers case), President A. Barak employed the “constitutional roadmap” approach, informing the Knesset of the alternatives that it might adopt in order to create an arrangement that would pass constitutional review in place of the provision that the Court had declared void in that case, emphasizing: “Choosing the proper balance point is given to the legislature” (ibid.).

            A tendency toward approach (a) appeared in later decisions (for example, by some of the justices in the Eitan case), or toward approach (c) (for example, in the Admissions Committees case: HCJ 2311/11 Sabah v. Knesset (Sept. 17, 2014), or the judgment in the matter of raising the electoral threshold:  HCJ 3166/14 Gutman v. Attorney General (March 12, 2015)). However, there has been no decisive verdict on this issue to date, and I do not propose that we adopt one here. However, I do think it appropriate to emphasize that it would be proper, in my opinion, to tell the legislators not only what is not constitutional, but also to provide them with general guidelines as to what can be expected to meet constitutional requirements, as President Barak did in the Investment Managers case. Beyond that, I believe that the said dialogue must continue openly, comprehensively and with mutual respect.

            This is the place to note that in the meantime a tendency has developed, at least in Europe, towards a fourth approach that takes the view that a court that declares a law unconstitutional must not suggest to the (national) legislature how to fix the law (see: the majority opinion in Hirst v. United Kingdom (No. 2) 42 EHRR 41 (2006), decided by the European Court of Human Rights, and which was influenced, inter alia, by the need to grant relative freedom to the EU member states. As opposed to this, see the leading article supporting substantive dialogue: Peter W. Hogg, Allison A. Bushell Thornton & Wade K. Wright, Charter Dialogue Revisited – Or “Much Ado About Metaphors”, 45 Osgoode Hall L.J. 1 (2007)).

6.         Now, after having presented the comparative law on this issue, and the theoretical streams that indicate the possible routes for dealing with it, I will return to the matter at hand.

It appears to me that the legislators, when they discuss the Bill in preparation for its second and third readings, must give thought to the words of my colleague the President, and my colleagues who are retiring from this Court (and therefore from this panel), which were uttered by way of “judicial advice” in relation to the subjects that remain pending in this petition. Moreover, the Respondents have made it clear that issues that the Petitioners raised could be discussed in the framework of the deliberations of the Labor Committee. The same applies, in my view, to the situation discussed in the Moshe case – a petition that was denied by a majority of four judges against three, and which presented, according to all the judges, a problem that called for a solution, preferably within the borders of Israel, without sending those petitioners (one of whom had a genetic connection and the other a physiological one) to a foreign country in other to fulfill their yearning for parenthood.

7.         How is the matter of Petitioners 1-4 therefore distinguishable from that of Petitioners 5-6, such that we leave the petition of the first group pending? I will now answer that briefly.

8.         The matter concerning Petitioners 1-4 does not encounter the barrier of an absence of a genetic link (at least with respect to one of the couples). At this stage, therefore, their request ought not to be rejected in advance, for it may be possible to find a solution for the issues that they raise within the framework of particular constitutional remedies, which my colleague Justice E. Hayut and myself were ready to consider in the framework of our dissenting opinion in the Moshe  case.

However, the legislature takes precedence in this regard, and a first step has already been taken in the framework of the Bill. Therefore, we found that we should wait for the process to ripen by virtue of the principle of mutual respect between the branches. However, the Bill, even if it is approved within a reasonable period of time, still does not, apparently, provide a solution for Petitioners 1-4 and others like them. Thus, their right to claim that a constitutional omission in this area violates their basic constitutional rights must be preserved. Recognition of this, if it should be given, and if  the violation is not protected in the framework of the limitations clause, might justify obligating the legislature to act (see: Aharon Barak, The Constitutional Right to Protection of Life, Body and Liberty, 15 Mordechai Kremnitzer Volume (Ariel Bendor, Haled Ghanayim, Ilan Saban eds., 2017)  (Heb.)), or the development of a suitable constitutional remedy. I say this here, without laying down the law, as a milestone or traffic sign in the framework of the above models (cf.: Young, at 131).

9.         In conclusion: this judgment is being handed down on the day of the retirement of my colleague Deputy President Selim Joubran. In translation from Arabic to Hebrew, the name Selim has two, separate or perhaps complementary, meanings: completeness and health. I know how much my colleague wanted his opinion in the case before us to be complete and to address all the aspects of the petition, so that his opinion would give expression to his complete judicial approach, which supports equality. The irony is that due to his pursuit of peace and in light of the above legislative initiative, which appeared only recently, he is forced to leave the labor for others to complete (the legislature, and if there is no choice – this Court).

It remains to me, therefore, only to wish our colleague Selim good health – which, as we have said, is the other meaning of his name – and that he continue to engage in productive activity, and to say to him who has in our eyes symbolized the possibility of co-existence with mutual respect, recognition and appreciation – goodbye and may peace be with you.

 

Decided in accordance with paragraphs 18 and 44 of the partial opinion and decision of Deputy President S. Joubran.

Given this day, 11 Av 5777 (Aug. 3, 2017).