Separation of Powers

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.

 

 

H.C.J  65/51

 

 

JABOTINSKY AND KOOK

v.

WEIZMANN

 

 

 

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

[July 20, 1951]

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

 

 

 

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

           

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

               

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

 

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

               

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

 

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

               

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

               

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

 

English case referred to:

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

 

American cases referred to:

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

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

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

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

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

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

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

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

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

 

S. Fishelev for the first petitioner.

R. Nohimovsky for the second petitioner.

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

 

SMOIRA P., giving the judgment of the court.

 

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

            The following facts are set out in the petition.

           

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

           

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

           

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

           

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

 

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

           

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

           

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

 

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

           

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

 

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

           

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

 

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

 

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

 

            The petition also contains the following submissions:

           

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

           

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

           

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

           

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

           

            This is a summary of the petition.

           

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

           

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

           

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

           

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

           

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

           

            The Attorney-General submitted two arguments: -

           

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

           

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

           

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

 

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

 

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

           

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

           

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

           

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

 

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

           

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

           

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

           

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

           

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

           

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

           

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

           

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

           

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

           

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

           

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

           

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

           

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

 

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

           

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

           

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

 

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

           

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

 

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

           

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

 

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

           

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

           

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

 

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

           

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

           

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

           

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

 

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

           

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

           

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

           

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

 

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

           

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

           

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

 

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

           

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

           

            We accordingly dismiss the petition for want of jurisdiction.

           

                                                                                            Petition for order nisi refused.

                                                                                            Judgment given on July 20, 1951.

 

In the Supreme Court

Sitting as the High Court of Justice

       HCJ 466/07

HCJ 544/07

HCJ 830/07

HCJ 5030/07

Before:                                            Her Honor, President D. Beinisch

                                                                   His Honor, Deputy President E. Rivlin

                                                                   His Honor, Justice (ret.) E.E. Levy

                                                                   His Honor, Justice A. Grunis

                                                                        Her Honor, Justice M. Naor

                                                                        Her Honor, Justice E. Arbel

                                                                        His Honor, Justice E. Rubinstein

                                                                        His Honor, Justice S. Joubran

                                                                        Her Honor, Justice E. Hayut

                                                                        His Honor, Justice H. Melcer

                                                                        His Honor, Justice N. Hendel

 

Petitioner in HCJ 466/07:                     M.K. Zehava Gal-On

Petitioner in HCJ 544/07:                     The Association for Civil Rights in Israel

Petitioners in HCJ 830/07:                   1.         Ranin Tawilla

2.       Hattam Tawilla

3.       Assalla Tawilla

          4.         Mahmoud S’bihat

5.       Dima Tawilla

6.       Ulla Tawilla

7.       Ahmed S’bihat

          8.         Mahmad S’bihat

9.    Adalah – Legal Center for Minority Arab Rights in Israel

Petitioner in HJC 5030/07:       Hamoked – Center for the Defense of the Individual, Founded by Dr. Lotta Salzberger (A.R.)

 

                                                            v.

 

Respondents in HCJ 466/07     1.        Attorney General

                                                            2.         Minister of the Interior

                                                            3.         Israel Knesset

Respondents in HCJ 544/07     1.        Minister of the Interior

and HCJ 5030/07                     2.        Commander of the Military Forces in Judea and Samaria

                                                  3.        Head of Southern Command

Respondents in HCJ 830/07     1.        Minister of the Interior

                                                  2.        Attorney General

 

Requesting to Join as                          1.         Fence of Life Movement: For the Construction Respondents                                                                   of a Separation Fence

                                                  2.        Shurat Hadin – Israel Law Center

                                                  3.        Im Tirzu – Building the Zionist Dream

                                                  4.        Movement for Renewed Zionism

 

Petitions for an Order Nisi

 

Date of Sessions:                      Nissan 2, 5767                       (March 21, 2007)

                                                  Heshvan 12, 5768      (October 24, 2007)

                                                  Nissan 30, 5768                     (May 5, 2008)

                                                  Adar 19, 5769                       (March 15, 2009)

                                                  Adar 16, 5770                       (March 2, 2010)

 

On behalf of the Petitioner in HCJ 466/07:	Adv. D. Holz Lechner; Adv. Tali Aviv
On behalf of the Petitioner in HCJ 544/07:	Adv. D. Yakir; Adv. S. Abraham-Weiss; Adv. O. Feller
On behalf of Petitioners in HCJ 830/07:	Adv. H; Joubrin; Adv. S. Zohar
On behalf of the Petitioner in HCJ 5030/07:	Adv. Y. Ben-Hillel; Adv. Y. Wolfson; Adv. L. Bechor
On behalf of Respondents 1 & 2 in HCJ 466/07, and Respondents in HCJ 544/07, HCJ 830/07, and HCJ 5030/07:	Adv. Y. Genessin; Adv. A. Licht; Adv. N. Ben-Or
On behalf of Respondent 3 in HCJ 466/07	Adv. R. Sherman-Lamdan
On behalf of Request to Join no. 1:	Adv. I. Tsion
On behalf of Request to Join no. 2:	Adv. L. Azar; Adv. A. Chen
On behalf of Request to Join no. 3:	Adv . J. Reshef; Adv . A. Baruch
On behalf of Request to Join no. 4:	Adv . K. Neumark

 

Israeli legislation cited:

Citizenship and Entry into Israel Law (Temporary Order), 5763-2003

Basic Law: Human Dignity and Liberty

Foreign legislation cited:

Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot) Act, 2001

Israeli Supreme Court cases cited:

[1]        HCJ 7052/03 Adalah – Legal Center for Minority Arab Rights in Israel v. Minister of the Interior [2006] IsrSC 61(2) 202.

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

[3]        HCJ 6427/02 Movement for the Quality Government in Israel v. Knesset [Nevo – 11.05.2006].

[4]        HCJ 2605/05 Human Rights Division v. Minister of Finance [Nevo – 19.11.2009].

[5]        HCJ 6126/94 Szenes v. Matar [1999] IsrSC 53(3) 817.

[6]        EA 2/84 Nayman v. Chairman of the Central Elections Committee for the Eleventh Knesset [1985] IsrSC 39(2) 225.

[7]        CrA 6669/96 Kahana v. State of Israel [1998] IsrSC 52(1) 535.

[8]        HCJ  8276/05 Adalah, Legal Center for Minority Arab Rights in Israel v. Minister of Defense [2006] IsrSC 62(1) 54.

United States cases cited:

 [9]       Hiabayashi v. United States, 320 U.D. 81 (1943)

[10]      Terminiello v. City of Chicago, 337 U.S.I.

[11]      Texas v. United States, 523 U.S. 296, 300 (1998).

[12]      Baker v. Carr, 369 U.S. 186, 217 (1962).

[13]      Clark v. Suarez Martinez, 543 U.S. 371, 386 (2005).

[14]      Fiallo v. Bell, 430 U.S. 787, 792 (1972).

[15]      Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950).

[16]      Zadvydas v. Davis, 522 U.S. 678 (2001).

[17]      Lochner v. New York, 198 U.S. 45 (1905).

[18]      United States v. Carolene Products Co., 304 U.S  144 (1938).

[19]      New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

[20]      Schenck v. United States, 249 U.S. 47 (1919).

Other foreign cases cited:

[21]      Kiyutin v. Russia, no. 2700/10, ECHR (2011) – 111 (European Court of Human Rights).

[22]      Pfizer Animal Health SA v. Council of the European Union, (Case T-13/99) [2002] ECR II-3305 (European Court of Human Rights).

 [23]     Libman v. Attorney General of Quebec [1997] 3 S.C.R. 569 (Canada).

                                                           

 

Judgment (Abstract)

Justice (Ret.) E.E. Levy

 

The State of Israel … will be based on freedom, justice and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex (…)

We appeal - in the very midst of the onslaught launched against us now for months - to the Arab inhabitants of the State of Israel to preserve peace and participate in the upbuilding of the State on the basis of full and equal citizenship (from the Declaration of Independence, 14.5.1948).

 

The Background and Pleadings

1.    Exactly 58 years after these words were written, on 14 May 2006, this Court expressed its position on the Citizenship and Entry into Israel Law (Temporary Order) that was enacted by the Knesset in 2003 (hereinafter: the Law). A majority of six of the eleven Justices found the Law to be unconstitutional, ruling that it unlawfully violated the right to equality of Israel’s Arab citizens and the constitutional right to family life (HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior [1] (hereinafter: Adalah Case). The Law was not declared void, and the Knesset was given time in which to amend it. That was five years ago. To this day the Law has not been amended as required.

2.    We have before us four petitions to invalidate the Law. It is argued that the Law is unsuited to the democratic paradigm, and does not implement the conclusions of the case law regarding the illegitimacy of the blanket restriction of the aforementioned rights. The Law discriminates between persons on the basis of nationality and ethnic affiliation, and does not reflect a willingness to take the risks that are inherent in the strict maintenance of basic human rights in general, and of the rights of the minority in particular. The respondents, on the other hand, are convinced that the Law comports with the complex reality in which Israeli democracy has been rooted since its very inception, and especially during the past decade –  years of terror that have been tantamount to outright war. In their view, prevention of immigration of enemy subjects into the territory of the State is imperative. The claim is that the security risk cannot be removed by means of individual checking. Instead, the Law which is under scrutiny at present has adopted a system of profiling – a system which is neither arbitrary nor sweeping, but which relies on the characteristics that are shared by terrorists, and which is capable of predicting risks and protecting the lives of Israelis.

Personally, it is unclear whether the line of argument taken by the State in its response – the security line – actually supports its position. Nevertheless, I too will limit this hearing to the parameters of the dispute as delineated in the respondents’ pleadings. Questions not yet ripe for resolution, such as, for example, the question of the composition of the Israeli population or the appropriate nature of an arrangement for immigration to Israel, will be left until their time arrives. I will just say that the character of the Law is reflected in the statements made on behalf of the Government by the Deputy Attorney General in the Knesset Interior Committee: “This provision was accepted by the Government for security reasons and due to an accelerated process of settlement of ten thousands of Palestinians in the State of Israel” (Knesset debate of 14 July 2003, emphasis added).

 

The Citizenship and Entry into Israel Law

3.  The core provision of the Law places limitations on the granting of status in Israel or a permit to remain therein to Palestinians who are inhabitants of the Territories, and to those who come from enemy states.

 

Limitation of citizenship and residence in Israel

During the period in which this Law shall remain in force, notwithstanding any legal provision, including sec. 7 of the Citizenship Law, the Minister of the Interior and the military commander shall not grant [to a Palestinian inhabitant of the Area] or to a citizen or resident of a state specified in the Schedule [Iran, Iraq, Syria and Lebanon] citizenship, nor will they grant him a permit to reside in Israel.

This blanket prohibition, from which Israeli residents of the Territories were excluded (sec. 1 of the Law), included a number of exceptions: Palestinian males over the age of 35 and Palestinian females of at least 25 years of age; minors up till the age of 18; a person who remains in Israel for purposes of work or medical treatment; and a person who identifies with the State or who has contributed to the advancement of its goals. Most of those applying for family reunification are not included in those categories.

The exceptions were included in the Law before it underwent judicial review on the previous occasion, when it was found to be disproportional. In the wake of the judgment, the Law was amended, but the amendment did not resolve the difficulty and in certain respects even aggravated it. A committee was established to consider exceptional humanitarian cases, and it was authorized to make a recommendation to the Minister of the Interior to permit temporary residence or a stay in Israel for special reasons. The Minister was authorized to establish a maximum yearly quota of such permits. The Humanitarian Committee approved only 33 of the more than 600 applications submitted to it, about one percent of an average of 3,000 applications for permits filed in each of the years that preceded the commencement date of the Law. The amended Law further provided that a person was liable to constitute a security threat to the State of Israel not only when there was information about him or a member of his family presenting a specific risk, but even if activity posing a threat to security “was carried out in his state of residence or in the area in which he lives.”

On Foundational Values and their Constitutional Expression

4.    Constitutional review seeks out the fundamental values upon which the political and social framework of the Israel is premised. All of these come together to form a broad conception which provides a common basis for the members of the nation, strives for coherence in sketching out the national story and records its defining features. This conception provides legitimacy for the existence of the nation, conferring upon it unique significance that distinguishes it from other nations. From this conception is derived – for the future as well – the image of the nation, the various developments of which are but a logical and ongoing sequence of chapters of the foundational narrative on which it is based. This idea was eloquently expressed by Dr. Sharon Weintal:

 

Looking backwards, the “foundational narrative” presents [the] historical events that preceded the establishment of the nation in the framework of a state, and provides the background and the justification for this development, such that the entire development is perceived to be a natural, obvious and legitimate one. From the current perspective, the “foundational narrative” presents the identity of the nation, as it was shaped in the process of its establishment, an identity that reveals the preferred way of life, common values, aspirations and purposes of the members of the political community, which are intended to guide those charged with the administration of the political framework. Looking to the future, the “foundational narrative” invites future generations to write their own unique chapters in the common story, without detracting from the logical sequence of the story, to change without becoming detached from the sources of the communal tradition (Sharon Weintal, “Eternal Clauses” in the Constitution: the Strict Normative Standard in Establishing a New Constitutional Order (Ph.D. Thesis, The Hebrew University of Jerusalem, 2005).

 

Identification of the nation’s foundational values is effected on the basis of the core conceptions of its people, its dominant and timeless values, foundational events, documents of special significance, its basic laws, its historical legacy and the consciousness that shapes its image. The foundational values express a broad cross-generational consensus. They reveal themselves from time to time in various scenarios occasioned by the life of the nation. They are written and updated from time to time. Each one of the governmental authorities is a partner, in accordance with its part and role, in their emergence, as well as in influencing their character.

5.    A conception that is concerned with the existence of foundational values raises, almost automatically, a question regarding their constitutional function. Two possibilities come to mind. The first lies in the idea of a material constitution, in the framework of which the foundational values fulfill their function as though they were constitutional norms, even if they are not anchored thus in writing. It is enough to correctly identify those values in order to recognize their normative weight, which is likely to limit the power – even that held by the legislator – to harm them. In this manner the foundational story may serve as an independent source from which constitutional values may spout. The second possibility rejects recognition of the power of any foundational narrative as an independent basis for the creation of constitutional values, but acknowledges the possibility of invoking this narrative in the interpretation of values which are based in constitutional documents. At the same time, the basic values play an important role in demarcating the borders of protection of the constitutional value. According to this approach, the values which the constitution did not seek, either explicitly or by derivation, to include within the scope of its protection will not merit constitutional status even if they are among the constitutive values of the nation.  However, the constitutional values will view the foundational narrative as a significant factor in determining the scope of their application and the determination of the extent of their protection.

These conflicting approaches found expression in CA 6821/93 Bank Mizrahi Ltd v. Migdal Cooperative Village [2] (hereinafter: Bank Mizrahi Case); in the decision concerning the enlistment into the Israeli Defense Forces of ultra-Orthodox Yeshiva students (HCJ 6427/02 Movement for the Quality Government in Israel v. Knesset [3] and especially in the case of the establishment of private prisons in Israel (HCJ 2605/05 Human Rights Division v. Minister of Finance [4]. In my own judgment in the last case, I remarked that “It might have been argued that recognizing the existence of basic values of the legal system as an instrument of quasi-constitutional review is inconsistent with the positive constitutional arrangement, whereby what has not yet been included in the Basic Laws is equivalent to an expression of negation of constitutional protection for those missing values  (ibid). I would now like to further refine these comments, through the prism of the present case.

There is little dispute that the Israeli constitutional project has not yet been completed, and that the Knesset, as the constitutional authority, retains the power to develop it. One may wonder why this development is necessary if one adopts a conception that recognizes the power of “fundamental values of the system” to constitute, as though out of thin air, new constitutional values.  The logical conclusion, which dovetails nicely with our constitutional tradition, is in fact that whereas the foundational values of Israel cannot engender independent protected values, their import lies in the interpretation of constitutional values in light of their purpose, and in the determination of the extent of protection that they warrant.

In these senses, the constitutional mechanism is an immensely important means for safeguarding the existence of the nation’s foundational values. It confers upon the legal system the power to protect the nation against radical changes to its foundational narrative which threaten to disrupt the sequence of building blocks that make up its story. Constitutional discourse protects the members of the minority from changes of this kind that are adopted by majority decision. It may well protect the rights of the majority from themselves. This mechanism helps identify an infringement of those values following a change that rattles the nation. It may sound the alarm. It may try to help repair the infringement. It is able to protect the normative framework from changes that would make such a violation possible.  However its power is not limitless. This point was made by the late Professor Gualtiero Procaccia:

 

… there is a danger that an ideological regression of a society will be accompanied by an ideological regression of its fundamental legal values. The legal system has no defense against this danger. The legal system in its entirety is a simulacrum of society, and if society changes, then so does the legal system, for good or for bad. Basic [legal] values cannot prevent the deterioration of society – this was not the purpose of their creation. Only the internal powers of society can prevent its deterioration. It is only continuous, uncompromising adherence to the eternal moral values of humankind that can prevent the deterioration of the society. Freedom, equality, and justice are the preliminary fundamental concepts of the legal system and they exist above and beyond it. As long as these moral values reside in people’s hearts, they will prevent the deterioration of the society, but if they do not exist, then it is not within the power of the constitution, the laws and the courts to save them (Gualtiero Procaccia, “Comments on the Changing Contents of Basic Values in Law” 15 Tel Aviv Law Review  (5750) 377, 382).

 

The Israeli Narrative – “Jewish and Democratic State”

6.    A distilled expression of the constitutive narrative of Israel is provided by the phrase “Jewish and democratic state”, which constitutes the keystone of our constitutional law.  The Declaration of Independence, from which I quoted at the beginning of my opinion, provides the outline for the character of the foundational infrastructure of the Israeli nation. The late Justice Haim Herman Cohn wrote of this declaration that it had been “raised to the level of the ‘manifesto’ of the state, in other words, a value unsurpassed by any other, values upon which the founding fathers promised to base the state” (Haim Cohn, “The Values of a Jewish and Democratic State”, Selected Writings (2001) 45, 51-52. It was not by chance that two Basic Laws, which together constitute Israel’s written Bill of Rights, provide as follows:

 

1.   Basic Principles	Fundamental human rights in Israel are founded upon recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free; these rights shall be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel.
1A.   Purpose	The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state.

 

In the combination “Jewish and democratic state” lies the key to Israel’s self- determination. It is central to its definition, even for the outside observer. It encapsulates the reason for the establishment of the state, and its special character. It is the source of its justified demand for international recognition. It underlies the feeling of Israelis that this is a state that ought to exist, and that being a citizen of this state is worthwhile. It provides the basis for the conclusion that this can be done, despite significant internal tensions.

Filling a fundamental principle with real content is no easy task. Without exhausting the subject I would say that the basis of the foundation of a state is the need to ensure the safety of its citizens. Many a state has been established as a result of the desire of a national group that founded it to realize its right to self-determination. The concept Jewish relates in a concrete sense to the right of the Jewish people to self-determination, as well as to its ability to defend itself from the outside. The basic concepts of Zionism, history, culture, Jewish tradition, and the Hebrew language, as well as a Jewish majority of the population of the state, are some of the components of the “Jewish” part (of the combination). As a democratic framework, the state is committed to a substantive conception of freedom and of equality, to upholding the basic rights of the individual, including those of minority groups, and to open and accessible mechanisms for dialogue and decision-making.

Each of the terms “state”, “Jewish” and “democratic” is the receptacle of an entire complex of constituent values. Occasionally they contradict and compete with each other. The tasks of harmonizing them into a single coherent story occasionally appears as an attempt to square a triangle, the points of which are these three concepts. However, this is inevitable.  The conflicts that arise, like the attempts to resolve them, are an integral part of the Israeli story. Even though each of these values per se can be described as integral, complete and absolute, this is not necessarily true with respect to the extent to which each is protected. This extremely complex formula, into which the values of the Jewish and democratic state are compacted, cannot allow any one of the values involved to occupy the entire space or to act as though it existed in a vacuum. Absolute protection for any one of the values threatens to destroy the entire equation. A suitable and appropriate balance increases the prospects for its success. This element of balance also serves as a constitutive value in our system.  The story of the Jewish and democratic state is a delicate and complex story of balancing between its different components, and just as it cannot tolerate the absolute foregoing of any of these components, neither can it agree to a sweeping and absolute dominance of any one of them. As such, while there may be situations in which the extremities of aspects of a central value in our legal system may find themselves extending beyond the foundational Israeli tapestry, the essence of that value, the nucleus around which its most salient elements revolve, cannot be missing from our constituent story. Harm done to this core cannot but disrupt the delicate balance upon which the Israeli equation is based. Detracting from elements located in this nucleus of the foundational value cannot coexist with the fundamentals of our system. Abandonment of the fundamental, classical elements cannot be squared with the notion of a Jewish and democratic state.

7.    The foundational values may assume different forms and appear in various ways. Jurisprudence has developed various mechanisms for choosing between competing values, according to their nature and the nature of the conflict between them. In balancing between a foundational value in the form of an important public interest and a constitutional right of the individual, the limitation clause of the Basic Laws comes into play. Competition between these values is settled in light of the principle that permits the breach of a right only for the purpose of realizing an important public principle, provided that the extent of the violation does not exceed that which is required. Deciding between competing values, which is contrary to the notion of the proper purpose and proportionality, is not consistent with the foundational  narrative. The constitutional mechanism must fix this.

Constitutional Review

8.    In its attempts to determine whether a violation of a protected constitutional norm is appropriate, the constitutional mechanism of the limitation clause establishes a hierarchy in the form of a funnel: “by a law, befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.” This graduated structure is comprised of normative filters, which become progressively finer and denser. The test moves from the difficult to the easier. The more blatant the deviation from the constitutional order, the sooner will the norm in question be caught in the constitutional filter. Violations that involve more complex questions of constitutionality will need to continue further along the path of the limitation clause. The advantage of this structure is found in the signal it emits, both to the legislator and to the court, concerning the depth of the violation of the constitutional order, in the indication it provides with respect to the proper way of dealing with this violation. The establishment of the “geographical location” of the violation affords the legislator a better understanding of the nature of the change that it must make to the law in order to render it constitutional. This structure helps the court to select the proper relief, for the graver the violation of the normative order, the more immediate and definitive will be the judicial relief for the protection of the right that was violated.

A law “befitting the values of the State of Israel”

9.  A law that is inconsistent with the Israeli narrative cannot stand. Its violation of our first principles is severe, and it is like an alien element whose existence is intolerable. The impact of the violation is so severe that the constitutional order is designed to block it at a relatively early stage. Case law generally relates to the requirement regarding the values of the state as a test of purpose at a high level of abstraction, the question being whether the law promotes, in terms of its objective, the fundamental values of Israel as these are derived from the need to protect the constitutional right. Our concern here is with the objective in the broad sense, namely, with all of the components that grant the law its unique significance. These include not only the purpose of the law but also the means it adopts and its outcomes.

A law “enacted for a proper purpose”

10.  The criterion of the proper purpose addresses the specific objective of the law.  It examines the law’s combined purpose – that which emerges against the backdrop of the totality of circumstances, the normative environment and the time in which the constitutional review is conducted, and that which expresses the “historical” intention of the legislator. In this context the law must overcome three hurdles in order for its concrete purpose to be regarded as befitting: [a] It must be intended for the achievement of social objectives, i.e., it must serve a concrete public interest. This requirement may be referred to as the test of interest;  [b] The interest must be regarded as sufficiently important to justify the violation of a protected right, having regard to the essence of the right and the severity of the violation. This can be referred to as the test of necessity. In terms of its development in our case law, and unlike other systems of law, this test has a relatively open texture, involving value-based decisions; [c] The law must befit a democratic regime that protects human rights. This is the test of sensitivity to the right.

11. The test of sensitivity to the right has yet to be sufficiently expounded in our case law, and the main thing that has been said of it is that “[a] purpose is deemed proper if it constitutes a social goal in a society sensitive to human rights” (HCJ 6126/94 Szenes v. Matar [5]). According to this conception a law that seeks to further a security interest, i.e., that at base seeks to protect a person’s right to life, is a law that is sensitive to human rights, and this is sufficient for purposes of determining that it is for a proper purpose. However, I am hard put to think of a law that seeks to promote a viable public interest which does not have some import for any of the human rights. Not only is it difficult to assume that had there been such a law, the legislature would have refrained from enacting it, but even had it been enacted, it would not have overcome the hurdle of befitting the values of a Jewish and democratic state. One may therefore wonder as to the utility of placing the hurdle of sensitivity to human rights at this stage of the constitutional examination, in that it is difficult to conceive of any law that would not overcome that hurdle. Therefore, the requirement of a befitting purpose must be understood to mean that a law cannot be befitting if it fails to demonstrate, according to its purpose, sensitivity to the right that is actually violated, as evinced in the circumstances under examination. As such, if in the previous sub-­test – the test of necessity – the appropriateness of the concrete purpose is tested from the perspective of the public interest, this will now be supplemented by the perspective of the right that was violated. In order to be regarded as befitting in terms of its purpose, the law causing the violation must demonstrate that it does not seek to deliver a mortal blow to protected human rights to such an extent that it becomes indifferent to the importance and significance of the violated right. A law that is totally indifferent to the importance of the violated basic rights is a law with an improper purpose. It cannot fit into the framework of a social order in which rights discourse is of the essence. In order to meet the test of sensitivity to the right,­ it must be shown that the law leaves, insofar as possible, real space for the existence of the right – even if only of its nucleus – whether broader or narrow, whether now or in the future, with various limitations, and provided that a reading of the law leads to the conclusion that it does not deny this right. This point was addressed by Dr. Yaacov Ben-Shemesh:

A democratic state that is sensitive to human rights is not free to promote the realization of public objectives in an absolute manner, regardless of their cost, and regardless of the violation of human rights that may be involved. Total objectives lead to totalitarian practices. It is doubtful whether a law intended to realize its objective to the maximum degree is a law intended for a proper purpose even if its  purpose, per se, is a proper purpose. It is conceivable that such a law will not overcome the hurdle of propriety of purpose not because the purpose is not proper but because it seeks to achieve it in a manner that is not proper, having regard to the importance of human rights (Ben Shemesh, supra, p. 59)

“An extent no greater than is required”

12.  We have derived three tests of proportionality from the wisdom and experience of others (Moshe Cohen-Eliya & Iddo Porat, “American Balancing and German Proportionality: The Historical Origins”, 8 Int. J. of Con. L. 263 (2010); R. Oakes [1986] S.C.R 103; L. 263 (2010). Proportionality addresses the means that the law seeks to invoke. This means may totally fail to realize the purpose of the law, in which case its violation of the right is in vain (rational relationship test), or it may realize the purpose but cause damage that was avoidable. The importance of this latter dimension, which attempts to identify the means which is the least intrusive, emerges specifically with the adoption of the notion that the proper purpose of the law must leave some space for the violated right. Once the notion of totality in realizing the public interest is rejected, the path is clear for an examination of whether the means adopted was the only one possible. Finally, it is conceivable that the norm under examination may indeed have realized the proper purpose effectively, but at the same time it harmed other principles and values, such that its damage exceeds its benefit (“narrow” proportionality test).

13.  This last test must be distinguished from the requirement that the law befit the values of a Jewish and democratic state. The test of appropriateness addresses first principles, and the value judgments it involves will reflect a relatively wide consensus. In addition, the three components set boundaries for its implementation. The final test of proportionality, which is paradoxically referred to as “narrow” even though it is quite broad, and even though  it is possible to structure the judicial discretion required in applying it, involves value judgments that may be controversial and are more dependent upon the world view of the observer.  In my view one must be careful to avoid transforming the “narrow” test of proportionality into a dominant one, to the extent of exclusivity, eclipsing the other components of the constitutional examination. The earlier it is possible to conduct this examination, in a non-contrived manner, the better.             

Today there is broad recognition of the similarity between the “narrow” test of proportionality and the ground of “reasonability” which for many years was dominant in our administrative law. The ground of reasonability provided a more powerful demonstration of the doctrinal and practical difficulties inherent in reliance on judicial discretion, in demarcating its borders and in identifying the proper relationship between it and the administrative act. These difficulties become more acute, a fortiori, when our concern is with review of legislative action, and they have been experienced by many of the legal systems that are confronted with defining the position of the various branches of government, particularly the relationship between an elected legislative branch, which operates by virtue of the majoritarian principle, and the judiciary. The transition from reasonability to proportionality is no magic potion. It does not eliminate the dispute between different views regarding the role of the court in a democratic society. As I already mentioned, certain aspects of proportionality may necessitate value judgments which are liable to further exacerbate this dispute. However, proportionality has advantages, the most important of which is that it involves detailed and structured tests, some of them objective, which provide a basis for in-depth argumentation.

The Citizenship Law and the Values of a Jewish and Democratic State

14.  The State of Israel was born into a security situation which was infinitely more difficult than the reality that it has confronted in recent years. Real existential threat hung over its head in the first decades of its existence. Many were consumed by doubt as to whether it was capable of meeting the challenges lain on its doorstep. An insistent question mark floated at times above the notion that it was possible to establish and successfully maintain a true democratic entity in the heart of a hostile region from which democratic ways of thinking were absent. Leaders in the Arab community in Israel as well as outside of it refused to accept the existence of a sovereign Jewish state in any part of the territory of the Land. They embarked on a war to destroy it when it was still in its infancy. After a short while, many of members of that community, as if all at once, became citizens of the state that was established. In this complicated reality, the young State inscribed on its flag the principle, which found expression in the Declaration of Independence, that even when the security situation was dire, and even though the basis for the State was the rebirth of the Jewish people in its homeland, all its citizens would enjoy equality of social and political rights irrespective of their religion, their ethnic origin or the community to which they belong. The historical experience of the Jewish people over the centuries, and one of the foundations in the name of which the State of Israel sought recognition amongst the nations of the world, acted to instill in the emerging image of the State this core component of equality – absence of discrimination due to group affiliation. The views diverge on the extent and the manner in which this would be applied. Even today, there are many allegations – not entirely baseless – of discrimination against and oppression of Arabs in Israel. But efforts were and still are being made, particularly in recent decades, to change the situation. The chapter of equality between Jews and those who are not Jewish has grown broader and it ought to be widened even further, until it is woven with silken thread into the entire fabric of the Israeli story, as an indisputable fact.

The difficult, continuous struggle for the peaceful existence of the Jewish people, too, adds to and comprises the Israeli foundational narrative. We are very far indeed from achieving rest and respite. Even if, albeit for a very short time in historical terms, the specter of the existential threat has been removed from above us, it has been replaced quickly by murderous terror. It has been decreed that we must deal with this. The efforts of our security forces make this possible. The courageous spirit and the determination of the Jewish people are no less important components. But our strength lies also in our existence as a democratic state, which aspires to allow individuals and communities to fulfill themselves, to express what is in their hearts, to move freely from one place to another, to think independently, to respect one another, to give a person the feeling that he is equal to the next person, to allow him to establish a home and a family of his choosing, and all this – without harming others.

15.  The realization of these elements under a single roof is not an easy task. It requires mutual concessions. It requires the taking of risks. It is not amenable to a blanket application. And the principle is as if woven into these things, that each person is an individual, and every man and women – even if he or she belongs to a particular social community – has a separate, individual existence. This is the basis of the idea that every person is responsible for his actions.

16.  The provisions of the Citizenship Law contradict all the above. They accord decisive weight to the element of security, while inflicting a mortal blow on basic rights of the first order. They create a reality, the clear outcome of which is constriction of the rights of Israelis merely because they are Arabs. They grant legitimacy to a notion that is alien to our basic conceptions – oppression of minorities only because they are minorities. By basing themselves on an arrangement of categorical classification, which contains everything except for an individual investigation of the danger presented by a person, they blur the image of the individual as an entire world in himself. They open the door to additional legislative acts which have no place in a democratic conception. They threaten to bring us a step closer to the conception that “preserves the outer skin of democracy, without leaving any traces of the contents” (Menachem Hofnung, Israel – Security Needs vs. the Rule of Law – 1948-1991 (1991) 105). The continued existence of the Law casts a dark shadow over the chances for Israeli democracy to meet the challenges which it faced till now. Whoever thinks that over time, even the majority, by virtue of whose decision this Law came into being, can withstand the damage it does, is wrong. I fear that it will threaten to overtake every Israeli, whoever he be, since it harbors the power to destabilize the foundation upon which we are all standing, shoulder to shoulder. At the end of the day this harm, distant and slow-approaching though it be, state-sponsored as it appears, is no less damaging than the acts of terror against which we are trying to protect ourselves.

17.  All this is wrought by the Citizenship Law at a time when it makes no real contribution to the Jewish aspect of Israel. On the contrary, because this Law has the potential to weaken the democratic foundations of the State, it also detracts from its ability to serve as the furnace in which the Jewish people is forged. This insight is particularly pertinent in view of the insistence of the State on its contention that the purpose of this Law is purely security-related, and nothing else. As declared, of the three arms of the foundational Israeli triangle, the Law purports to assist only in the realization of that relating to “state”, i.e., to the framework of the state that promotes the security of its citizens. It seems to me that this purpose can and should be achieved at a lower cost. Only individual arrangements, which avoid labelling a person according to his ethnic origin, affiliation to an age group, gender, or area of residence – arrangements that are based on acknowledgement of his own actions, evince a willingness to take the risk that is involved in recognition of human rights, and which draws upon our historical experience and our tradition as a people and as a state.

 

The Detailed Purpose

18.  The Citizenship Law serves a concrete public interest, the importance of which cannot be overstated. Protection of the security of the residents of Israel in view of terrorist threats justifies a certain erosion of the protection of the right to equality. It justifies a constriction of the protection of the right to family life. But the failure of the Law to propose a means of detailed examination – in view of the stance of the security forces that they are not able to achieve the same optimal degree of security to which the Law aspires in its present formulation – is such a gross violation of these rights, to the extent that it is no longer possible to say that the Law is sensitive to human rights. The Law does, indeed, prescribe exceptions to the limitation on acquiring a status in Israel. It expresses its position that in certain circumstances, Israelis can become reunited with their Palestinian spouses, as well as with their offspring. But these circumstances are so sparse, and their application so limited, that in practice they leave no room for the main principles of the specified rights. A comprehensive examination is not necessary in order to establish that the majority of Arab-Israeli partners wish to marry men and women belonging to the “prohibited age” under the Citizenship Law. This is the customary age of marriage, and this is attested to by the assessment of the respondents that some two-thirds of those who seek status by virtue of family reunification (an annual average of approx. 2000) are not included in the exceptions specified in the Law. Particularly noticeable are the weakness of the humanitarian exception and the idea, surprising in itself, of setting quotas for permits issued by virtue of it (sec. 13A1(6) of the Law).

Most of the applications for marriage or for reunification with children do not succeed in overcoming the sweeping restriction in the Law. But even those which fall within the bounds of one of the exceptions are not assured a detailed examination. They pass on to the next station – to a test under sec. 3D of the Law; this section, too, entrenches a blanket arrangement. Applications which made it over the various hurdles placed by the Law and have reached this stage are liable to find themselves exposed to a blanket disqualification, which has absolutely nothing to do with detailed information about the individual. This may happen, for example, only because the Palestinian partner resides in an area in which activity is taking place that is liable to endanger the security of the State of Israel or its citizens. Is there no room for allowing him, this foreign partner – and even if the State met its preliminary burden of showing that he presents a security risk – to prove on his part that despite the involvement in terror of his relatives or his neighbors in the area in which he resides, he himself has nothing to do with activity of this type? Examination of a person’s match to a profile of risk of one sort or another, I would stress,  is not a  detailed examination. And not only do two-thirds of the cases of family reunification not cross the threshold of the Law, but the vast majority of the cases that succeeded in accessing the foyer and crossing it successfully gained for their subjects only a permit to remain in Israel, which does not grant the rights enjoyed by Israelis. After all the exceptions, the Law implements an extremely sweeping arrangement, which does not take into account the rights of a sizeable majority of the Israeli partners, most of whom are Arab-Israeli citizens. In this can be seen the severe erosion of the right to family life. In this can be seen the mortal blow to the heart of the right to equality – the prevention of discrimination against a background of group affiliation.

A possible salve might have been found had the temporary order been of limited duration. A true and sincere time limitation may blunt the effect even of a blanket arrangement, and it is possible that this would provide the necessary minimal living space for the violated rights. But what can I do – once again I cannot escape the conclusion that the Citizenship Law is in no way temporary; rather, it was intended to be with us for many years, despite its promising title: “Temporary Order”.

On temporary orders:-

There is no greater eternity

Than a door sign stating: Closed for the day.

Forever it shall be closed.

No one will open. No one will emerge.

Not a cloud in the sky.

Embrace the verdict. Sign.

They will not open. Go home. Dream.

(Yehuda  Amichai, Poems 1948-1962, at p. 352 (2002))

 

19.  Prior to the Knesset passing the Law in the summer of 2003, the Government presented its clear position that the lifetime of the Law would be limited. But since then, the force of the Citizenship Law has been extended thirteen times – twice by the Knesset and another eleven times in governmental decisions that were approved by the Knesset. Even were we to ignore the question which is complex in itself – whether it is appropriate that the force of laws of the Knesset, and particularly a law which has such a significant impact, is extended by a governmental order which the legislature approves in a rapid process, a single vote, which may well not be based on a full picture of the information – I am afraid that again, we cannot be satisfied with the title “Temporary Order”. What was intended to be a temporary order has proved to be, unfortunately, an “Order Enduring Many Years”. Once it became clear that not only from the point of view of its contents but also from the perspective of the duration of its application, the Citizenship Law leaves inadequate room for the violated rights, it could no longer be said to be sensitive to human rights. It cannot be said of its purpose, even its concrete purpose, that it is proper.

20.  This lack of sensitivity to the violated rights becomes more acute in view of the conclusion that the Law has additional purposes, apart from that of security. It permits the entry of Palestinian workers into Israel, and allows for the granting of status to Palestinians who have helped Israel. I find it difficult to accept the State’s argument that the risk presented by temporary Palestinian workers – tens of thousands per year – is less than and substantially different from that presented by inhabitants of the Territories who acquired citizenship in Israel. The principle-based argument is not at all convincing, in my opinion, for access to Israel is possible for “day-trippers” too, just like workers. There is no escaping the conclusion that whenever the State has an interest in the presence of workers who fulfil employment requirements that the economy has trouble supplying, the security consideration is laid aside for the moment, or at least loses its status as a main consideration. This is not only liable to render the security purpose suspicious to some, but in my view, it poses an additional question mark as to the degree of seriousness with which the State relates to the violation of the protected rights of its Arab citizens.

Proportionality

Even an assumption that the Law is not inconsistent with the values of the Jewish and democratic state, and that its particular purpose is proper, will not help it to pass the constitutional test at its final station, that of proportionality. First, I believe that intensifying the violation of equality between Jewish and Arab citizens of Israel will not be of benefit even from the security point of view. The outcome is likely to be a reduction of the security risk from one aspect, but its increase in another aspect, for the feelings of frustration and oppression are liable to be directed into negative channels.

If this leads to the conclusion that the Law lacks a rational connection between its purpose and the means of achieving it, then this conclusion is even more valid from an additional perspective. Even if I assume that the Law seeks, according to its purpose, to leave adequate room for the violated rights, the sweeping means it prescribes are inconsistent with this purpose. The illegitimate blanket application of the Law finds expression in the assessment of the tools it adopted. Arrangements that are not sensitive, in a specific manner, to every application that is submitted to the security forces are not consistent with the intention to recognize the central place of the right to family life and the right to equality. Even on the assumption, which as stated is not at all obvious, that a law under which decisions are made according to sketches of profiles will be more effective in increasing security, there is a serious question mark about its ability to also promote the other part of “proper purpose”, which is showing sensitivity to human rights.

22.  But even if the Law managed to reach the threshold of the second test, that which seeks the means that is less intrusive, blocking it with this fine filter would be justified. At the point of departure, which claims that the Law is not directed at the achievement of absolute security, but it does what it can to limit the security risk presented by inhabitants of the Territories and hostile states, there is no escaping the conclusion that there exists a means which is less intrusive, i.e., the detailed check, the scope and a character of which will be determined in consultation with the experts on the matter, including the security elements, in advance, throughout the process, and if necessary, even thereafter.

23.  The words of the respondents best show that individual security checks are very effective. According to their data, of more than 600 applications that were lodged since September 2005 by virtue of one of the exceptions provided by the Law, and that were rejected for the reason that the applicant had been found to be connected to terrorist activity, more than 270 were from people who had already begun the process of acquiring status or acquiring a temporary permit to remain in Israel and had received temporary Israeli documentation; follow-up checks that had been made revealed that negative security information existed about them. In 66 other cases, this was the situation regarding those who received a permit to remain in Israel not by virtue of family reunification but for other reasons. It seems to me that  even disregarding the fact that these were in any case not disqualified on the basis of the risk profiles in the Law, these statistics indicate the efficacy of the accompanying security check.

24.  Not infrequently, in dealing with the second test of proportionality, the argument arises about the financial cost of the means that have been selected, and about the economic burden that these alternative means are likely to impose on the State. A significant difference in cost is liable to exclude the alternative means from the bounds of the means whose adoption is possible. In my view, it cannot be denied that cost is significant, but this significance decreases as the extent of the violation increases, and particularly when the violation is not in the category of damage to property, nor one that can be remedied by means of financial compensation. The violation of the rights that are the subject of these petitions, the protection of which justifies the investment of public resources, even in substantial amounts, is of this type. Secondly, my mind was put at rest in this matter, too, by the explicit words of counsel for the respondents, whereby the problem did not lie in the cost of the individual checks, but in the “inherent difficulty”, as she said, of adopting these detailed checks, whatever their cost may be.

Ultimately, my opinion is that the Citizenship Law does not overcome the hurdle of the constitutional mechanism; this inevitably calls for granting the appropriate judicial relief. With this I will conclude my words.

The Constitutional Relief

25.  Voidness is a major remedy for a misdeed in relation to the acts of a governmental authority. Its purpose is two-fold: repair of the wrong that is caused to the individual as a result of the act of the authorized body and restoring the authority to the path of constitutionality. In the course of the years, the discourse has moved from an absolute model of voidness, which means voiding the governmental act immediately and in full, to a classification of the relief according to the circumstances, including in light of the nature of the process and the identity of the parties to it. The main thrust of the doctrine of relative voidness is its granting of judicial discretion as to the breadth and depth of the voidness. Deferred voidness means that the court has the power to withhold its constitutional approval from the governmental action, but it postpones the date on which this receives practical expression. The two doctrines are liable to be invoked in examining the constitutionality of a Knesset law.  Judicial discretion in selecting the relief resorts to a complex system of balances and various considerations. An appropriate solution for one set of circumstances may prove to be unsatisfactory for another. Sometimes, declaring immediate voidness of a statutory norm will be an appropriate response to the violation it involves, particularly when this is serious and more marked. On the other hand, there are situations in which despite recognition of the flaw, the benefit of deferring the voidness will exceed the harm caused by the constitutional violation.

Deferral has advantages and disadvantages. On the one hand, it allows the governmental authority the necessary time to rethink and to make the preparations for fixing the existing arrangement. The advantage of this is that it does not exhaust the legal process before the fate of the governmental action is decided, in a way that is certain to lead – even if only after some time – to the removal of the flaw. It allows the governmental authority time for consideration and for the necessary public and political discourse – vital elements in the legislative and administrative enterprise. The advantage lies also in the fact that it reduces the risk of a normative lacuna which is liable to accompany immediate voidness. On the other hand, it has two weaknesses. First, it extends that lifetime of an illegitimate norm; and second, in detracting from the power of the authority under review it is liable to turn the opponents of judicial review against the courts, and in a case in which no alternative arrangement has been proposed, when the time arrives for the voidness to take effect, it may even erode the status of the courts of law.

26.  But the main virtue of deferred voidness is its contribution to constitutional dialogue, that is, to the 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. It acknowledges that the constitutional enterprise is not the exclusive domain of one authority. The responsibility for it – which is heavy indeed – does not fall upon the shoulders of the court alone, nor on those of the Knesset nor on those of the government only. Protection of constitutional basic values – one of the most important elements of the democratic system – is effected by the three branches together. It is best, therefore, that engagement with constitutional questions should be the outcome of an honest, constant and continuous dialogue between the authorities 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. On the positive characteristic of constitutional dialogue, Hogg and Bushell wrote as follows in their well-known article:

[T]he judicial decision causes a public debate in which Charter values play a more prominent role than they would if there had been no judicial decision. The legislative body is in a position to devise a response that is properly respectful of the Charter values that have been identified by the Court, but which accomplishes the social or economic objectives that the judicial decision has impeded… The legislative body would have been forced to give greater weight to the Charter values identified by the Court in devising the means of carrying out the objectives, or the legislative body might have been forced to modify its objectives to some extent to accommodate the Court’s concerns. These are constraints on the democratic process, no doubt, but the final decision is the democratic one… Judicial review is not “a veto over the politics of the nation,” but rather the beginning of a dialogue as to how best to reconcile the individualistic values of the Charter with the accomplishment of social and economic policies for the benefit of the community as a whole (P.W. Hogg and A.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, 79; 80; 105 (1997)).

But constitutional dialogue cannot be fruitless. It cannot serve as a cover for an ongoing violation of human rights It cannot camouflage an approach that does not acknowledge the importance of protecting these rights. It cannot provide a platform on which to make light of their gravity. It cannot obviate the process of judicial review. In the absence of constitutional dialogue, the Law in question cannot be allowed to remain in place until the Knesset deigns to amend it.

Decision and Conclusion

27.  The loss of the democratic image of the State of Israel and the abandonment of basic concepts that it has held from its inception is something the Israeli public cannot accept. Our legal system cannot reconcile itself to this. The Citizenship Law threatens to create more than a crack in the wall, the strength of which has held till now, and which is called “a Jewish and democratic state”. The violation caused by the Law is serious. Its harms resounds. Its enactment is a foundational even in the democratic history of Israel. Even if there are those who would see this as a watershed in the relationship between the branches of government, the court can no longer observe this even from the sidelines. There is no option but to exercise our judicial authority. The severity of the violation and the concern about its additional ramifications make this necessary.

This does not detract from recognition of the gravity of the terror that has struck in our midst. The scenes of the attacks which we have experienced and their horrible results constantly pierce our hearts. Comfort over the worlds that have been destroyed in an instant – young boys and girls, parents, the elderly, entire families with all their children, soldiers, men and women – is hard to find. Outright war must be declared on the murderers, those who send them out, those to do their bidding – even amongst Israeli Arabs. It is the duty of the State to protect its residents, insofar as possible within the framework of the democratic regime. Its role is to aspire to ensure personal security. In times of security threats, the State is permitted to act differently than in times of peace and quiet. Nevertheless, we must not cross lines that must not be crossed. This has happened, even in foreign fields (and see: Hiabayashi v. United States [9]). This is not the way of the Israeli legislator. “Israel is the only state in the twentieth century that has succeeded in maintaining the existence of democratic institutions and a reasonable level of human rights for its citizens, despite the constant external threat” (Hofnung, ibid., at p. 346). I am sure that just as the Knesset succeeded, over the years, in dealing with complex, difficult challenges, this time too it will find a way to fix that which requires fixing.

28.  Based on this position, I propose to my colleagues that we issue an absolute order stating that the Citizenship and Entry into Israel Law (Temporary Order) 5763-2003, is void on grounds of unconstitutionality. The voidness of the Law will come into effect nine months from today.

 

Justice S. Joubran

I concur in the ruling of my colleague Justice E.E. Levy according to which the Law should be struck down, even in its present formulation. However, my reasoning is different.

In HCJ 7052/03 Adalah – Legal Center for Minority Arab Rights in Israel v. Minister of the Interior [1] (hereinafter: Adalah Case), I ruled that the right to establish family life is a constitutional right which is protected in its entirety by Basic Law: Human Dignity and Liberty. I also ruled that the harm caused to this right by the arrangement specified in the Law touched upon the very essence of a person as a free citizen.

The Law and the amendment thereto prevent (almost totally) the possibility of realizing the right to family life with a partner who is an inhabitant or a citizen of the Area. This limitation is relevant only to the group comprised of Arab citizens of the State – it is they who in practice marry spouses from the Area. Accordingly, the provisions of this Law must be viewed as substantially violating the constitutional right to equality.

I will add that the amendment to the Law includes both inhabitants of the Area and inhabitants of states listed in Addendum B, including Syria, Lebanon and Iran. In my view, this generalization is not justified. First, the political situation that exists between Israel and the Palestinian Authority is different from that existing between Israel and the states appearing in the second addendum. Secondly, it is unjustified in view of the social, cultural and special historical situation between the Arab citizens  of the State of Israel and the inhabitants of the Area.

3.  The respondents argue that the provisions do not violate the right to equality, and that they are based on a permitted distinction due to the security threat that is posed by partners from the states specified in the Law. However, the total negation in the Law of the possibility of acquiring a status for a partner who is an inhabitant of the Area, with no indication of danger posed by him, attests in my view to a distinction which is not permitted, one which has ramifications for a defined, specific population group (Arab citizens) and which is not based upon concrete characteristics of those who are seeking the status (inhabitants of the Area).

The State supports its argument with data according to which, of the total number of inhabitants of the Area who acquired status in Israel by virtue of family reunification, several dozen have been involved in terrorist activity. It contends that there is a statistical potential risk posed by every one of the members of the group which justifies the distinction. In my view, attribution to an individual in a group of the negative characteristics that are attributed to the group, in the absence of any specific indication in respect of that particular individual, is illegitimate, and it violates the autonomy of the individual and his dignity. It would have been appropriate for the State to act to obtain maximum information, in order to create a distinction between the different persons seeking status and the degree of risk that they pose.

4.    This, of course, does not decrease the importance of the security need which is behind the enactment of the Law. Every state is obligated to preserve its existence and to protect the security of its citizens. However, it must be recalled that the state exists not only for the purpose of preserving the physical existence of its citizens, but also in order to allow them to realize their humanity and their liberty, through the creation of the rule of law.

5.    The violations of protected constitutional rights perpetrated by the Law are extremely severe, but that is not enough to strike it down. In accordance with the limitation clause in the Basic Laws, a law may violate constitutional rights, since they are not protected in their entirety. My colleague Justice E.E. Levy rules that the Law already fails to meet the second criterion of the limitation clause (the criterion of befitting the values of the State). In my view, my colleague’s approach extends the scope of judicial review within the parameters of the criterion of “befitting the values of the States of Israel” in the limitation clause; this is at a time when the constitutional tools of review – central to which is proportionality – that were broadly developed in international and Israeli law are more suited to the constitutional examination of this Law, in accordance with what my colleague President Barak wrote in the Adalah Case. In my view, in the area of judicial review of the constitutionality of a law, we must proceed cautiously and with restraint. As long as the second criterion of the limitation clause has not been sufficiently developed, it should continue to be invoked as a threshold criterion at a high level of abstraction, and its development should be left pending for the future.

Moreover, recourse to the criterion  of “befitting the values of the State” for the purpose of voiding this Law departs from our analysis in the Adalah Case. Despite the amendments to the Law as described, and the worsening violations, I am not convinced that there is justification for departing from President Barak’s analysis, with which I concurred (see the Adalah Case, p. 485). Care must be taken that similar cases received similar legal treatment, and even if in this case it seems, prima facie, that the path trodden by my colleague Justice E.E. Levy is correct and just, we must maintain strict consistency, unless there is significant reason to deviate from our path.

6.    In the Adalah Case it was ruled that the Law was designed for a proper purpose (pp. 318, 340). On this matter, I will once again stress that an examination of the Law and the arrangements it establishes, even in its present formulation, engenders the concern that security is not the only consideration behind the enactment of the Law, and it raises questions about the policy that the Law seeks to realize. It appears that demographic policy also figures amongst the considerations underlying the Law (see the Adalah Case, pp. 486-487). At the same time, having concurred in President Barak’s ruling in our previous judgment, whereby even the security consideration does not justify such a severe violation of family life and of the right to equality, I see no need to discuss this issue in the present petition as well.

7.    In light of this assumption, let us proceed to the criteria of proportionality. Regarding the first sub-criterion – the rational connection between the means and the end – in my opinion it should be ruled that there is a rational connection between the security purpose of the Law and the means that it prescribes. In the framework of the criterion of the rational connection, a clear question must be asked: do the means that were selected further the aims of the Law? Even if the purpose of the Law is only partially realized, the rational connection exists.

In accordance with the interpretation accorded to this criterion, one is hard-put say that the Citizenship Law fails to meet it. The very fact that the Law is of help in realizing the purpose, i.e., reduction of the security risk (as my colleague Justice E.E. Levy also determines in para. 36 of his opinion) shows that it establishes a rational connection between the end and the means. Other considerations should not be introduced into this criterion – ones which should find expression in the balance in the framework of the third sub-criterion of proportionality.

8.    The criterion of the “least intrusive means” has been interpreted in the case law as an instruction to examine whether the legislator selected, from amongst those means that realize the proper purpose of the law causing the harm with the same degree of intensity, the means that entail the least violation. The only difference there should be if we were to exchange the harmful means with an alternative is a lesser violation of the constitutional rights, with no difference in the other details surrounding the Law and in the extent of realization of the proper purpose (Barak, Proportionality in Law, p. 399). In my view, the question of the extent to which the alternative means must realize the purpose of the Law is likely to arise here: must the realization be full and identical, or can we be satisfied with a high, although not identical, degree of realization? I do not think that this question must be decided, since in my view the Law must be struck down as it does not meet the third sub-criterion, as will be elucidated below.

9.    The third sub-criterion is the very heart of the principle of proportionality, which erects a “moral barrier” and prescribes that there must be an appropriate relationship between the benefit engendered by realization of the purpose of the law and between its violation of constitutional human rights. In relation to this sub-criterion, no amorphous, generalized balance is sought between the benefit and the harm. We must define what the harmful means has added to the purpose that the law sought to promote, and to examine this as against the additional violation of the constitutional right as a result of that same violating means prescribed in the law, and to compare their weights. Moreover, a situation is possible in which the balance can be reduced even beyond this. The starting point of the balancing of what has been added was the assumption that we are comparing the situation prior to the enactment of the harmful means with the situation following its enactment. As will be recalled, a less harmful means may possibly be found, one which does not wholly realize the aims of the Law, and which is not necessarily relevant to the second sub-criterion, but which is relevant in the context of the third sub-criterion. If such a means exists, then it will be the means figuring in the balance.

10.  Thus, the Law in the present case is not the only means to ensure the security of the residents of the State; it is only one of the many means of maintaining security alongside  many other laws, the activity of the security forces etc.. On the other hand, the means adopted by this Law cause a severe violation of the right to family life and the right to equality. In view of the complexity of the said rights and the many violations of them, the realistic path is to examine what the Law adds to security, and what it adds  to violation of the right. This is based on the assumption that security is also realized through many other means, and that the constitutional rights are violated by many other arrangements as well.

11.  The question in the framework of this sub-criterion in the present case is this: “Is the additional security that is obtained in the transition from the strictest detailed check possible according to the law of the foreign partner to a sweeping prohibition on entry into Israel properly proportionate to the additional violation of human dignity of the Israeli spouse that is caused by this transition?” (ibid., at p. 345). The answer to this question is that there is no proper proportion between the added contribution to the purpose of the Law as opposed to the additional violation of constitutional rights. Indeed, assuming that we are talking about a proper security purpose, then the means prescribed by the Law, and principally, the blanket prohibition, contribute to security. But this purpose is obtained at too heavy a price. A democratic state cannot allow itself to pay such a price, even if the purpose is apparently a proper one.

12.  Therefore, I concur in the decision of my colleague E.E. Levy that the order should be made absolute, and that the Citizenship Law should be declared void due to its non-constitutionality. I would add that alongside the legal difficulties that are raised by this Law, and due to which it should be struck down, this Law, like every law, was created in a particular social atmosphere and it affects this atmosphere. I can but rue the existence of this Law, which has the power to continue to make difficulties for the maintenance of the integrity of the delicate fabric of Israeli society, in all its sectors and varieties.

Justice E. Rubinstein

Justice E. Arbel

Justice Arbel joined in the deliberation of the petition in its second incarnation, following in the paths that were paved in the first judgment on the matter of the Citizenship Law; she elucidated her position and her reasoning, stressing the difficulty involved in making a decision.

In the view of Justice Arbel, and as the majority of the bench in the first judgment on the Citizenship Law held, the starting point of the deliberation must be that the purpose of the Law is security-related.  At its heart is the concern about involvement in activity against the security of the State of Israel on the part of foreigners who arrive from states or areas whose hostility to Israel is clear and known, and who wish to settle in Israel in the framework of family reunification with an Israeli partner.

The right to family life is a constitutional right that is derived from the constitutional value of human dignity. The right of a person to connect to a person and to establish a family with that person is intricately woven into the value of human dignity, and lies at its heart. It is one of the fundamental components that define a person’s identity and his ability to achieve self-realization. A person’s right to choose with whom to bind up his life is the ultimate expression of autonomy of the individual will. It expresses a person’s most basic needs for love, for belonging, for partnership and for propagation. As such, it stems from the very basis of human existence. However, the right to family life does not means that the foreign spouse of an Israeli citizen has a right to immigrate to Israel by virtue of the marital bond. As has been mentioned, a state, by virtue of its sovereignty, has the power to limit the entry of foreigners into its territory, and a foreigner has no vested right to enter the country. In principle, the State, due to its security requirements, may decide to prohibit entry into its territory of nationals of a hostile state or of those who arrive from places which are very hostile towards Israel and in which activity against Israel and its security is conducted. This is even more the case when Israel and the state of the foreigner for whom family reunification is sought are engaged in armed struggle, and it is certainly true in relation to a state that is subject to such varied, incessant significant security threats such as Israel. However, even in this situation, the Law must meet the constitutional criteria of legislative review.

In proceeding to examine whether the right to family life is violated by the Law, Justice Arbel was of the opinion, after difficult deliberation, that there is no escaping the conclusion that the right to family life comprises two aspects – the substantive right to marry a foreigner and the right to realize family life in Israel. The separation between the substantive right and the right to realize it is artificial, for without realization of the right, there is no right. The almost blanket limitation imposed by the Law on the possibility of establishing family life together with a foreign partner who is an inhabitant of the Area, or the subject of a state that poses a risk constitutes a violation of a constitutional right not only by its very nature, but also, and mainly, because the implementation of the said limitation is not egalitarian.

Indeed, the Law does not distinguish between the Jewish citizens and the Arab citizens of Israel. It does not distinguish between any citizens. The same rule applies to all. The distinction adopted by the Law is based on a relevant difference between foreign partners who originate from the Area and hostile states – places in which activity against Israel and its security is conducted – and foreign partners from other places which do not, apparently, invoke a presumption of danger of this sort. However, even in these circumstances, the focus of the examination is on the Israeli citizen. For the Arab citizens of Israel, the inhabitants of the Area, who are members of their nation, constitute a potential group with whom to establish family connections. As such, on the basis of the outcome, they are the main victims of the limitation according to the Law. When, according to the outcome, the Arab citizens of Israel are much more severely harmed as a result of the statutory limitation than are other citizens of Israel, such a broad assumption of dangerousness as prescribed by the Law cannot legitimize the violation of the right to family life, to equality, nor can it legitimize the violation of dignity. In practice, the violation of the right to family life occurs in a way that is unequal and discriminatory. Accordingly, it was ruled that the Law violates the right to family life, in its broad sense, and the right to equality.

According to Justice Arbel, the main difficulty posed by the Law in its current formulation focusses on the stage of examining proportionality in its narrow sense, which is a component of the criteria of the limitation clause in sec. 8 of Basic Law: Human Dignity and Liberty.

Justice Arbel believes that it is very doubtful whether from a practical point of view, the detailed security check alone is capable, as the petitioners contend, of achieving the purpose of the Law. Relying on the assessment of the professionals, Justice Arbel concluded that despite the fact that individual scrutiny of partners who wished to enter would cause the least violation, from the point of view of severity, scope and depth, of the right to family life and of equality, it is not capable of realizing the purpose of the Law to the same degree as the broad prohibition under the Citizenship Law. Therefore, it was ruled that the Law stands up to the second sub-criterion of proportionality – the criterion of the means which is least intrusive, for no other less harmful means exists which will realize the purpose of the Law to the same extent as the means that was selected.

On the question of the proper ratio of the security purpose of the Law to the harm it causes to the basic right to family life, Justice Arbel’s opinion was that an examination of the “added value” that the Law provides as opposed to the “added harm” caused by its violation of the right of Israeli citizens to family life reveals that the Law is not proportional. This position is based on two elements. The first is the non-proportionality of the harm from the perspective of time, for recourse has been had to a temporary order whose validity has twice been extended by the Knesset and ten times by governmental decisions. The fact that the violation of basic rights was effected by a temporary order, due to the exigencies of the time, can indeed serve as an indication of the proportionality of the violation. The temporary nature of the violation, stemming from the fact that the legislation appears in the framework of a temporary order, has implications for assessing the magnitude, the depth and the breadth of the violation of the human right. However, since the Law was enacted as a temporary provision, its validity has been extended twelve times. There has been no significant change in the Law. A survey of the changes that were introduced into the Law in the years that elapsed since its enactment raises, at very least, a concern that more than being designed to moderate the severe harm that the Law represents, these changes were designed to provide a basis for it.  A temporary order is naturally suited to a temporary arrangement. Invoking it for purposes that touch on the core of the constitutional rights, such as in our case, gives rise to difficulties, particularly insofar as it entrenches a severe violation of human rights. Hence, the matter ought to have been regulated by statute.

The second base on which the position of Justice Arbel rests is the nature of the violation of basic rights. According to her, the potential added security provided by the restriction under the Law does not equal the additional certain damage in the wake of a real, concrete, profound and severe violation of the right to establish family life, of the right to equality and dignity, as well as a violation of their right to realize these rights in a state in which they are citizens with equal rights. To these is added the severe harm done to the feeling of belonging of the Arab citizens of Israel, which may intensify the feeling of alienation and rejection that is common amongst at least some of this public.

Justice Arbel arrives at this conclusion in light of the existence of a more proportional, even if not optimal, alternative – the detailed examination – which can be improved by combining it with additional means of checking and oversight. Together with this, Justice Arbel mentioned the conditions which could be added to the detailed examinations in order to demonstrate that the voiding of the Law need not necessarily leave the legislator empty-handed. A suitable arrangement could be basically similar to the outline proposed by Justice Levy in the first incarnation of the judgment in the matter of the Citizenship Law, which included three main components: as thorough and detailed an examination as possible in the circumstances; conditioning consideration of the application upon the foreign partner not being in Israel illegally and not being in Israel as long as permission to enter has not been given; similarly, a requirement of declaration of loyalty to the State of Israel and its laws, renouncing loyalty to any other state or political entity. It would also be possible to require longer minimum period of residence in Israel as a threshold condition for acquisition of Israeli citizenship, when the spouse is an inhabitant of the Area or a national of a hostile state. Commission of serious criminal offences will be cause for immediate termination of the process of family reunification. The State is authorized to attach certain conditions to a person’s entry into Israel, the purpose of which is to reduce the security danger he represents, such as a prohibition on visiting his original place of residence or a prohibition on making contact with certain elements if they are involved in activity against the security of the State. Justice Arbel does not rule out the possibility that the arrangement that will be introduced will distinguish between territories in Judea and Samaria and between the Gaza Strip and hostile nations, if the experts on behalf of the respondent think that there is a difference between them with respect to the ability to gather information for the purpose of conducting an individual examination .

Justice Arbel proposed to defer the declaration of voidness for a year from the time of publication of the judgment, mainly because this is a complex subject which is of great public importance. The legislator must weigh the subject in all its aspects, and formulate a proper, balanced arrangement, or alternatively, prepare itself for the reality that will exist once the Law is no longer in force. The legislative arrangement will be shaped and set in place by the legislature, if it sees fit to do so, for that is its role and its expertise.

Justice H. Melcer

Introduction

1.    Let me begin by saying that in my opinion, the order nisi that was issued in this case should be cancelled. This is because the arrangements that were prescribed in the Law that is being challenged are, at this time, the lesser evil, and “better safe than sorry”. In the area with which we are dealing, the principle that reflects the above saying is the precautionary principle. This principle has established itself in recent years in relation to various subjects, and it seems to be applicable to the present matter as well.

The Present Petitions and the Normative Basis

2.    The petitions before us once again raise the question of the constitutionality of the current provisions of the Citizenship and Entry into Israel Law (Temporary Order), 5763-2003 (hereinafter: the Law, and together with the amendments made to it: the amended Law). The previous formulation of the Law was examined in the framework of HCJ 7052/03 Adalah – Legal Center for Minority Arab Rights in Israel v. Minister of the Interior [1] (hereinafter: Adalah Case), and the petitions in that matter were ultimately denied.

After the judgment was handed down in the Adalah Case, the Law was amended, and changes were introduced to it. Against the amended Law the present petitions were lodged, and in the period during which the petition has been pending, the validity of the amended Law has been extended several times by the Government with the approval of the Knesset.

3.    The amended Law provides that the Minister of the Interior will not grant Israeli citizenship or a permit to remain in Israel to a person who is an inhabitant of Judaea and Samaria or of the Gaza Strip (hereinafter: the Area), or a person who is a citizen or resident of Iran, Lebanon, Syria or Iraq. The amended Law also provides that the commanders in the Area will not provide the inhabitants of the Area with a permit to remain in Israel.

Several exceptions were made to this provision, by virtue of which the governing bodies mentioned in the Law were authorized to provide a permit to remain in Israel, or a status in Israel in particular cases.

In the amendment of 2007, several innovations were introduced into the amended Law: the establishment of a committee charged with examining the provision of a permit to remain in Israel for humanitarian reasons; a broadening of the geographical scope of the Law as mentioned above; and an extension of the definition of the security risk to a situation in which activity was taking place in the area of residence of the person that was liable to endanger state security.

Current Data concerning the Amended Law in Light of the Security Situation (according to the Respondents)

4.    The point of departure of the amended Law is that at this time, it is not possible to conduct a detailed diagnosis for the purpose of predicting whether a person is dangerous with respect to the entire body of requests to settle in Israel by virtue of the process of family reunification. Therefore, the amended Law prescribes a model based on risk profiling.

Thus, inter alia, special arrangements were fixed for obtaining a status in Israel, and women and men who were not included in the clear risk groups were excluded. Authority was also given to deviate from these arrangements for special humanitarian reasons.

5.    The respondents declare that from August 2005 until April 2010, the Ministry of the Interior approved the granting of status in Israel to 4118 subjects of the Palestinian Authority on the basis of applications for family reunification. To this data must be added the activity of the Professional-Humanitarian Committee. Up to April 2010, in excess of 600 applications were submitted to the Committee. More than 282 applications were considered by the Committee. 33 applications were handed on with positive recommendations to the Minister of the Interior and approved by him, and the applicants were granted permits to remain in Israel.

From the above it emerges that despite the security risk,  in recent years more than 4,000 Palestinians were granted a status in Israel by virtue of the exceptions prescribed in the amended Law.

The Present Security Situation

6.    From the statistics of the Security Forces, the following facts emerge:

From 2006 until April 2010, some 200 suicide attacks were averted. In addition, in the course of the years 2009-2010, the General Security Services averted dozens of intended suicide and kidnapping attacks at earlier stages of their preparation, We were further informed that the terrorist organizations continue to attempt, constantly, to carry out attacks in Israel, and to recruit activists and arms for perpetrating attacks.

7.    The assessment of the security forces is that radicalization amongst the Palestinian population is on the rise. This applies to the Gaza Strip, and to Judea and Samaria and the Jerusalem area.

8.    From the above we learn that contrary to the impression of relative quiet, attempts are being made to carry out attacks in the heart of the State of Israel. In order to carry out attacks, cooperation with those who are originally “inhabitants of the Area”, who have settled in Israel, is necessary. In almost every such attack to date within the territory of Israel, a person bearing Israeli documentation was involved at some stage or other of the planning, abetting or perpetration of the attack.  

The amended Law is one of the ways of preventing this.

Statistics about the Involvement in Hostile Terrorist Activity of Palestinians who were Originally Inhabitants of the Area, who Reside in Israel After having been Granted Status in the Wake of the Process of Family Reunification

9.    From 2001 until 2010, 54 Palestinian subjects, who acquired or sought to acquire status in Israel in the framework of the process of family reunification, or elements connected to them directly, were involved in terrorist activities that were actually carried out, or that were prevented at the last minute.

In this context it should be explained that according to the approach of the security forces, the very entry of a Palestinian subject into Israel in the framework of the “graduated test” adopted by the Israeli authorities is what makes it “attractive”. Naturally, insofar as the person bears an Israeli identity card or driving license, his “potential contribution” to the causes of terror also grows.

Failures of Individual Screening and the Age Groups in the Profile of Dangerousness for Perpetrating Hostile Terrorist Acts Against the State of Israel in Accordance with the Amended Law

10.  According to the statistics of the Security forces, since September 2005 632 applications to acquire a status in Israel by virtue of family reunification were rejected on grounds of involvement in terrorist activity.

It should be understood that of the 632 applications that were rejected as stated, in 273 cases the obstacle arose after the status was granted or preliminary approval was given in the framework of the “graduated process”. It will be stressed that in relation to these applicants,  the information from which it emerged that they were perpetrators, terrorists or helpers was discovered after the individual screening had not produced any suspicious information in relation to them.

Hence one can discern the inherent difficulty in relying on detailed screening, while ignoring the age-risk profile of the inhabitants of the Palestinian Authority.

The activity of terrorist organizations is based on the recruitment and identification of activists who are not known to the security forces in Israel from the outset as terror activists, in the format of penetration into Israel by means of marriage. For these seekers of status individual screening is in any case not effective, for at the time of submission of the application these people are not involved in terror and therefore there is no information arousing suspicion about them.

Moreover, the failures of individual screening are aggravated with the routinization of the phenomenon known as the “lone attacker”, who acts without affiliation to any terrorist organization.

Reactions of the Petitioners to the Above Statistics

11.  The response of the petitioners in HCJ 830/07 to the above information was a general denial. Furthermore, they and the other petitioners repeated the legal arguments that they raised in the Adalah Case and in the petitions before us.

12.  The petitioners in HCJ 5030/07 asked to discuss the violation of the rights of minors in the provisions of the amended Law, and commented that the respondents had not supplied separate data concerning the involvement of the children of inhabitants who acquired a status or a permit in attacks. Moreover, and according to them, the status of the children who live in East Jerusalem was not accorded separate treatment, as was required according to their approach. They also added that the credibility of the security argument is undermined by the application of the amended Law to children, as well as the willingness to furnish them with CCA (Coordination and Communications Administration) permits alongside the refusal to grant them permanent status and social rights.

Deliberation and Decision

13.  The basis for the allegations of the petitioners is in the fact that the amended Law violates the basic constitutional right to family life.

In my opinion, even though the right to family life is a basic right, the possibility of realizing it in the state of citizenship of the Israeli partner does not have constitutional status, as I shall elucidate below.

Rejection of the Argument that the Right of the Israeli Partner to Bring the Foreign Partner into Israel is a Constitutional Right that is Protected by virtue of Basic Law: Human Dignity and Liberty

Under the provisions of Basic Law: Human Dignity and Liberty, the right to enter Israel is granted only to Israeli citizens (sec. 6(b)). The right to leave the country, on the other hand, is granted to every person (sec. 6(a)). My opinion is that the right to enter Israel is the constitutional right of a citizen, and not one conferred upon every person, as I will explain forthwith.

According to the opinion of the majority of the justices in the Adalah Case, the basic constitutional right to family life is a derived right from the “mother right” to human dignity, or a type of right derived from a derived right (a “grandchild right”) to the right of equality that is included in the “framework right” of human dignity. The question here, therefore, is how far the “rights without a particular name” can be stretched. It would seem that when the extent of the derived right is not consistent with the reach of the particular constitutional “mother right”, the latter must prevail as being lex specialis. That is to say, in the said case the particular “mother right” – the right of entry to Israel, as defined in the Basic Law –  prevails over the derived right – the right to family life in Israel of the Israeli citizen, and its ramifications for the possibilities of the foreign partner and children to enter the State and remain there. 

Contrary to the petitioners’ argument, comparative law has not recognized a constitutional right of the right of a spouse who is a citizen to cause his/her partner to acquire citizenship or another status for remaining in the country of citizenship (of the former). Only recently, this rule was again approved in the European Court of Human Rights, in the case of Kiyutin v. Russia [21].

14.  This leads to the conclusion that the petitions should be denied, even if only on the basis of the fact that in my view, the alleged right on which the petitions are based does not pass the “first stage” of the constitutional examination. At the same time, out of respect for the opposing – reasoned and detailed – views of the majority justices in the Adalah Case, and of some of my colleagues here, I will continue with my analysis and I will discuss the applicability of the terms of the limitation clause to the entire matter.

15.  There would seem to be universal agreement that the requirement of the limitation clause that the violation be “by law or according to law”, i.e., by virtue of explicit authorization, is met here.

16.  It would appear that the majority of the justices on the bench, too, are of the view that it cannot be said that the amended Law, in its present format and its temporary nature, is not in keeping, in the circumstances in which we find ourselves, with the values of the State of Israel.

17.  The next test that the amended Law must pass is that of the “proper purpose”. In the Adalah Case, most of the justices agreed in fact with the view that the Law was designed to ensure Israel’s security. And I, too, think so.

18.  What remains to be examined, therefore, is the proportionality of the Law according to three sub-tests:

(a)   The test of the rational connection.

(b)   The test of the least intrusive means.

(c)   The test of the proportional means senso strictu.

The main dispute in this case turns on the third of the above sub-tests.

At this point I wish to show that the amended Law satisfies the above criterion, in that it represents the precautionary principle, which has been developed in comparative law for situations of predictable uncertainty and catastrophic risks.

The precautionary principle is a relatively new principle in public law, but within a few years it has justifiably become – with the support of liberal jurists and the case law – one of the important principles in a number of areas, such as the environment, the use of nuclear energy and nuclear waste, use of medications, genetic engineering, oversight of food, sources of water and more.

In implementing this principle in the areas in which it was already recognized, the precautionary principle was designed to deal with the difficulty of the gap between the existing knowledge at a given time and the enormous and uncertain  potential harm that was liable to be caused by an activity, if appropriate precautionary measures were not adopted in relation to that activity. From the outset, the principle allows the authority (the legislature or the executive) to adopt measures designed to prevent the catastrophe when a significant threat of irreversible, wide-spread damage exists, even if the probability is low and even when there is no proven scientific certainty that the damage will indeed eventuate.

Many fine scholars have studied the origin of the precautionary principle. Some have held that this principle is simply a matter of pure logic. According to others, it is typical of the modern approach of citizens and governments who are attempting to reduce risks, or to change the emphases of various disciplines and values (science, economics, ethics, philosophy politics and active law – for the protection of the public) that prevail in society. My present analysis follows the path of the research of Professor Funk (Björn M. Funk, “The Precautionary Principle”, in The Earth Charter: Framework for Global Governance 191, 196 (Klaus Bosselmann and J. Ronald Engel eds., 2010), although I believe that it is possible to find echoes of this principle already in the words of Proverbs 28:14: “Happy is the man that feareth always…”. In all events, in modern law the development of this principle is attributed to German jurisprudence, in which it also came to be known as the Vorsorgeprinzip.

The principle first received a universal legal formulation in 1992 in the Rio Declaration on Environment and Development.  Since then, the principle has been modified many times in form and content, and it has had some twenty formulations.

The commonly accepted approach today with respect to its definition is formulated as follows:

Where an activity raises threats of harm to the environment or human health, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically In this context the proponent of an activity, rather than the public bears the burden of proof. (Wingspread Statement on the Precautionary Principle (1998), http://www.gdrc.org/u-gov/precaution-3.html).

 

This approach is more simply and memorably formulated in the English expression, “Better safe than sorry.”

(a)   Dr. Liav Orgad in his article (“Immigration, Terror and Human Rights: Israel’s Immigration Policy in Times of Emergency (Following HCJ 7052/03Adalah v. Minister of the Interior)”, 25(2) Mehkarei Mishpat  (2009), 485) offers a number of reasons why, in the circumstances, the basic constitutional right to family reunification in Israel may be violated, even if the percentage of terrorists among the “family migrants” is small. They are as follows:

(1)   The relevant question, in his opinion, is not how many “marriage migrants” were involved in acts of terror or how many acts of terror occurred due to their immigration, but rather, how many victims there were and how much damage was caused.

(2)   It must be borne in mind that the success of a “quality” terror attack exacts a cost that is far greater than the number of victims: it has far-reaching strategic, political and psychological ramifications. A successful terror attack has ramifications for the state economy, for tourism, for international relations, for the deterrent ability of the state, for its ability to stand up to threats and similar variables that are part, or should be part, of every mathematical equation or formula.

(3)   The question is not only how many acts of terror were committed by “family migrants”, but what percentage do these constitute of total terrorist acts that were committed by Israeli citizens.

(4)   Even if we accept that the state must take risks in order to realize basic constitutional rights of its citizens, we cannot ignore the fact that the risk that the state is required to take in the case of marriage migration of enemy subjects stems not from citizens of the state, but from foreign partners.

(5)   The present version of the Law contains five exceptions, which in any case obligate the state to take risks; these exceptions allow for detailed screening of about thirty percent of the applications.

(6)   From an institutional point of view, value-based decisions of this type ought to be made by the parliament and not by the court, unless there was a flaw in the decision-making process or it was based on alien considerations or it is irrational.

20.  It now remains for us, therefore, to examine the compatibility of the precautionary principle with the test of proportionality. The leading European decision on this subject is Pfizer Animal Health SA v. Council of the European Union [22] of the European Court of Justice, which in effect combined the precautionary principle with the criterion of proportionality and ruled, in our terms, that in cases in which the conditions for the application of the precautionary principle are met, one cannot say that the acts of the authority did not fulfill the requirements of proportionality, for in such situations, preference is accorded to the considerations of the regulatory authority, since it bears the responsibility if the catastrophe eventuates, and it will be required to justify its actions, or its omissions.

Let us now move on to discuss in greater detail the third sub-criterion of proportionality i.e., the “test of relativity”.

21.The criterion of “proportionality senso strictu” requires, as is known, that in order to justify the violation of a constitutional right, there must be a proper and positive relationship between the added benefit ensuing from realization of the legislative purpose and between the added harm that is liable to be caused thereby to the constitutional right. In my humble opinion, when the added benefit that the Law under scrutiny wishes to provide is the prevention of anticipated damage,  and particularly in situations in which the precautionary principle is apt, the relevant legislation will successfully pass this sub-test.

Thus, in the present case, the alleged additional violation of the right to family life, which is of high probability in the wake of the provisions of the amended Law, carries less weight than the anticipated harm.

22.  Moreover, and on the contrary. As is known, the legislator is afforded “legislative room for maneuver”. Within this room, the question with which we are confronted is not whether we would succeed in devising a better arrangement, but whether the arrangement that was selected is constitutional, i.e., whether it falls within the “legislative room for maneuver” within which the legislator is permitted to operate. Indeed, as Dr. Orgad demonstrates in his above article, the legislator not infrequently fixes provisions and prohibitions on the basis of statistical generalizations that are considered reliable, even if most of the individuals who belong to a particular risk group are not dangerous on an individual level, but the level of danger presented by this group as a whole is higher than that presented by other groups. Thus, for example, the generalization whereby young people have dangerous driving habits, and therefore restrictions and special statutory provisions will apply with respect to their driving, does not mean that all youngsters, or even a majority of them, drive in a dangerous manner, and it does not require a cancelling of the restrictions in the law that are applied to the driving of youngsters per se. This is particularly the case in relation to the precautionary principle.

23.  Application of the precautionary principle in the present case is justified, for this is a situation in which the uncertainty is great and even if the alleged anticipated danger is relatively very low, the tragedy that could be caused is absolutely terrible, and there is in fact no alternative for preventing it other than by means of a blanket restriction (with exceptions, as in relation to the amended Law). Moreover, the parameters for comparison between the potential damage and the violation of the right set up different values, which are difficult to present and assess in juxtaposition.

24.  The precautionary principle has another quality that is relevant to our matter, viz., the fact that it requires a permanent, ongoing examination with respect to the parameters defining it. This is consistent with legislation of temporary orders, for limitation of time, per se, contains an element of proportionality.

25.  We learn from comparative law that recourse to temporary legislation is appropriate in four alternative situations (see: Jacob Garsen, “Temporary Legislation”, 74 U. Chi. L. Rev. 247, 273-279 (2007)):

(a)   Constraints due to  urgency or emergency;

(b)   A controlled trial of a new system, or a new policy or as a means of receiving information;

(c)   A response to defects in existing normative situations;

(d)   An attempt to overcome cognitive biases.

Simply put, it appears to me that most of the above situations exist with respect to the reality that gave rise the amended Law and its extensions, and it can only be hoped that the reasons that justify adopting these steps will disappear in future. In the last update submitted to us by the respondents on 21.12.11, they said that an administrative study project is being conducted by the Government with the objective of formulating a comprehensive legal arrangement regarding the policy for entry into and settlement in Israel, as part of the State’s handling of the issue presented by legal and illegal immigration to Israel.

In view of the above – in the framework of the abovementioned administrative study which is at present being carried out, or parallel to it, in deliberations towards extending the validity of the amended Law – emphasis should be placed at least on two subjects:

(a)   A thorough reexamination of the severity of the present risks, while attempting to neutralize the cognitive biases that exist in these fields.

(b)   The provision of appropriate solutions for the problems and the status of minors, the children of the families to which the Law refers. On this matter I concur, fully, in the opinion of my colleague Justice M. Naor.

This last matter brings us to the issue of relief.

Relief

26.  In my view, as stated, the petitions should be denied. However, even those of my colleagues who hold that the Law should be declared void are of the opinion that the decision of voidness should be deferred for a significant period (up to nine months), in order to allow for another statutory arrangement to be devised. In my humble opinion, there are two fallacies in this approach:

(a)   At the time of writing this opinion, the said Law is scheduled to lapse on 31.1.2012, and one cannot know if it will be extended and how. Hence, whoever advocates striking it down is in fact giving the amended Law life, or is suggesting to the authority to extend its force even beyond the period allocated to it. This is problematic in view of the substance and the special nature of such a Temporary Order Law.

(b)   The relief that my colleagues propose proves that even according to them, the amended Law at this stage is essential (even if not necessarily in its present format) and proportional and that it in fact meets the requirements of the limitation clause, for apparently, the deferral provision, too, must conform to constitutional criteria.

 

Justice M. Naor

Justice Naor restated her position in HCJ 7052/03 Adalah – Legal Center for Minority Arab Rights in Israel v. Minister of the Interior [1] (hereinafter: the Adalah Case), according to which the Citizenship and Entry into Israel Law (Temporary Order), 5763-2003 (hereinafter: the Law) should not be voided. Justice Naor noted that with the passage of time, the number of families who married prior to the decision of the Government and the Law and who are not able to realize family reunification has decreased; in her opinion, this alleviates somewhat the harsh consequences of the Law. Justice Naor added that without making light of the hardship caused to families that were established subsequent to the government decision or the Law, the Israeli spouses who chose to establish families after the rules of the game had been changed, with persons whose entry into Israel was prohibited, did so in the knowledge of the legal situation in Israel.

Justice Naor reiterated her position concerning the scope of the constitutional right to family life. She discussed the fact that the right to family life, which is a whole world, has many derivatives, and that the constitutional protection of the right to family life does not provide universal coverage on the constitutional level. Similarly, in her view, no general duty should be imposed on the state to permit family reunification within the territory of the State of Israel. Against this backdrop, Justice Naor determined that the constitutional protection does not apply to the possibility of realizing family life with a foreign spouse in Israel in particular, which is only one of the derivatives of the right to family life. Justice Naor emphasized that in other democratic states as well, the constitutional right of a citizen or a resident to bring a foreign spouse into his country and to choose the country in which family life will be realized has not been recognized.

Justice Naor noted that even on the assumption that the right in question is a constitutional one, it was agreed that there is no obligation to permit the right to be realized at all times under all conditions. Justice Naor cited several examples from the case law of the Supreme Court, which permitted postponement or deferment of the realization of the constitutional right, out of consideration for the public interest. Justice Naor pointed out that in a similar fashion, in the present case, realization of the right to bring a foreign spouse into Israel was deferred for a fixed, known time (as opposed to some unclear, undefined time): until a woman reached the age of 25 years old, and a man – 35 years old. Justice Naor ruled that having regard to this and in view of the special, serious public interest underlying the Law, the Law meets the criteria of proportionality.

Justice Naor added that the provisions of the Law applying to minors allow minors not to be separated from a parent with custody who is entitled to reside in Israel. Justice Naor added that the State explained that minors who received a resident license or permit to remain in Israel, as relevant in accordance with the provisions of the Law, would continue to benefit from the same status even after they reached the age of 14 or 18, as relevant, on condition that they continued to reside permanently in Israel, and in the absence of any criminal or security-related obstacle. In light of the above, Justice Naor ruled that there is no cause for concern that minors, or minors who have reached majority, will be separated from their families; hence, in her opinion, intervention of the Court is not warranted, even in relation to the provisions of the Law that involve minors.

 

President D. Beinisch

1.    The question of the constitutionality of the provisions of the Citizenship and Entry into Israel Law (Temporary Order), 5763-2003 (hereinafter: the Citizenship Law or the Law) has come before us once again for adjudication. The Citizenship Law raises several basic issues that Israeli society must confront; first and foremost amongst these is the constant need to find the correct balance between security requirements and protection of human rights. The sweeping arrangements established in the Law give rise to difficult, complex questions  which are both legal and social in nature. These arrangements demonstrate the almost impossible reality with which the State of Israel is confronted both internally and externally. Israel is not the only state dealing with questions regarding immigration policy but it seems that the situation here is different from everywhere else. Israel is in a constant state of war or  “quasi-war”, and those who seek family reunification in Israel come from areas that are in a state of bitter conflict with Israel. But together with this bitter conflict, there are Arab citizens living in Israel who maintain ties with these people. Some of the ties are family ties. Those Israeli Arab residents and citizens seek to realize their rights, including their right to family life. Because the Arab minority constitutes the absolute majority of those seeking family reunification, any violation of their right to realize their family life is also a violation of equality. However, a certain number of spouses of Israeli citizens, who were permitted to live in Israel for the sake of family reunification, have abused their status and joined terrorist organizations; and ultimately, it was murderous terrorist attacks that spawned the need to legislate the Law and to adopt additional security measures.

In this complex reality, Israel must find an arrangement which, on the one hand, will allow for the maintenance of the security and protection of the State, but on the other hand, will not violate basic rights beyond what is necessary. Finding this balance is not a simple task. Every arrangement must be based on Israel’s social, cultural, ethical and legal background. The security situation with which Israel has been dealing since the day of its establishment must be its backdrop, but it cannot ignore the fact that the problems of security are a permanent fixture, and unfortunately, it is difficult to regard this situation as a temporary one.

2.    It is extremely doubtful whether the changes made to the Citizenship Law since the first judgment limit its application. The point of departure according to President Barak, in whose position I concurred in the first judgment, was a person’s basic right to choose a spouse and to establish a family unit with that partner in his country. This right, so we ruled there, is severely breached by the provision of the Citizenship Law in its establishment of a blanket prohibition against the entry of residents of Israeli-occupied territories, irrespective of whether that spouse poses a security risk. In our judgment we recognized the importance of the security requirements, and even of the need to establish presumptions of risk. At the same time, we pointed out that there cannot be an all-inclusive negation of basic rights, without any concrete investigation of the particular person and situation.

3.    In the framework of the amendments that were introduced after the first judgment, the “presumption” of security risk was not changed, and it was even extended. Under the Law at present, not only is no concrete investigation of the risk posed by the spouse or his/her family members or immediate surroundings required, but a general profile of dangerous activity that is taking place at the spouse’s place of residence is deemed sufficient. The list of the countries from which entry into Israel is prohibited was extended to all the states that are in a state of belligerence with Israel. The Law, in its former version and as formulated at present, does not allow for a concrete check of those seeking family reunification, and it does not have recourse to other means which involve a lesser violation of rights.

4.    We will also mention that not only the changes – the few changes – that were introduced into the Law are the focus of the petitions before us. They are accompanied by the fact that the Citizenship Law, which was enacted as a temporary order, has acquired permanent status on our law books. The Law has been extended twelve times since its enactment in 2003. The significance of this for a constitutional analysis of the Law is huge. The fact that the arrangement established in the Citizenship Law was enacted by way of a temporary order was the factor underlying the opinions of a significant number of judges in the first judgment, who held that in view of its set duration, the temporary arrangement obviates the need for a determination concerning a constitutional infringement and its proportionality. Reality, as we now know, has proved otherwise. The temporary order was extended many times, and even if it is possible that the same security need drove the extension, the question still arises as to whether, by means of the narrow chink through which temporary orders gain entry, the legislator was not attempting to introduce matters that would better have been given serious consideration, and in relation to which their introduction through the front door  should have been examined.

5.    In this situation, I can only repeat the position I expressed at length in the first judgment. The amendments that were introduced into the Law do not ameliorate the violation of the right to family life and the right to equality. I already pointed out in the previous judgment that absolute security does not exist in Israel, nor in any other state. Taking a risk is a necessary element of life in society and in the state, and the question, ultimately, is the degree of calculated risk that Israeli society is able to assume.

6.    In this context I will point out that I do not agree with recourse to the “precautionary principle” proposed by my colleague Justice Melcer. The precautionary principle is designed to deal with catastrophes when there is no scientific basis for their eventuation or for assessing the damage that they will cause. This principle allows for reduction, to the point of absolute obliteration, of the margins of risk that society is prepared to assume. By virtue of this principle it is possible to take far-reaching preventive action even in the absence of sufficient proof that the catastrophe will occur. My approach is that the conception of “preventive precaution” which gives priority to adopting the safe line – even where there is no direct causal connection between the act that is averted and its possible consequences – is an extremely wide one. It poses a significant risk not only of infringement of constitutional rights, but also of infringement of the processes of decision-making. This is because, if it is preferable to be safe in every case, there is no need to investigate the alternatives that reduce the violation. This approach has real potential for creating a slippery slope that is likely to lead to recourse to expansive regulatory means in order to prevent risk. It is not only the danger that was averted following recourse to the precautionary principle that must be considered, but also the risk that this itself creates.

7.    I do not concur in the position taken by some of my colleagues whereby the risk posed from permitting family reunification, subject to detailed checks or adoption of other means of testing is such that it justifies so broad a violation of basic constitutional rights. I am not arguing with the security needs. However, we must ensure that recourse to principles such as the precautionary principle – the goal of which is to impose very broad arrangements in order to prevent potential danger – do not themselves cause real harm. The Citizenship Law in its present formulation entails very significant harm. It impacts our most basic democratic conceptions. It involves a serious violation of the constitutional rights of the Arab citizens of Israel.

8.    My approach, as stated, is that even in its present formulation, the Law cannot be upheld due to its non-proportional violation of the right to family life and the right to equality. I believe that the proper balance was not achieved when the Law was analyzed in the first judgment, and the amendments that were introduced did not bring it to the point at which we could say that the Law is constitutional despite its violation of basic rights. The violation must – and also can – be ameliorated by changing the arrangement, be it by conducting detailed checks of those who seek family reunification; be it by allowing the refutation of the presumption of risk; or be it by broadening the possibility of acquiring status in Israel for humanitarian reasons. All these must find expression in legislation.

9.    Therefore, if my view is accepted, I would propose to my colleagues to order the Law to be invalidated, but to rule that it may be extended in its present format, if necessary, for an additional period not to exceed nine months. I am aware of the fact that in doing so, we will be allowing a law to remain in force despite its non-constitutionality. Nevertheless, in the present case immediate repeal of the Law would change the legal situation that pertained in the last eight years without a transitional period. An immediately-effective change in the reality will lead to a lack of preparedness on the part of the authorities responsible for implementation of the Law, and will increase the danger to which the public is exposed. Secondly – and particularly – this amount of time is required in order to allow the legislator to formulate a statutory arrangement.

 

Justice A. Grunis

The words of President A Barak (EA 2/84 Nayman v. Chairman of the Central Elections Committee for the Eleventh Knesset [6], at 310; CrA 6669/96 Kahana v. State of Israel [7], at 580) are based on the statement of Justice Robert Jackson of the United States Supreme Court in 1949 (Terminiello v. City of Chicago [10]). Justice Jackson, who was in the minority, warned his colleagues, the majority justices, in the following words:

There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact  (ibid., at p. 337; my emphasis – A.G.).

These words of warning are what guided me when I expressed my opinion in the earlier process (Adalah Case), in which we were asked to examine the constitutionality of the Citizenship Law. I believed then, and this is still my opinion today, that the Law meets the criterion of constitutionality.

2.    I am prepared to assume that the Law infringes the constitutional right of the Israeli couple to family life. I stress that this is only an assumption. This emphasis is intended to clarify that in principle, I am not one of those who accord the explicit constitutional rights in Basic Law: Human Dignity and Liberty extremely wide, comprehensive significance. As I said in my opinion in the previous process:

The very broad definition of the constitutional right … leads to a situation in which quite a few laws will be considered as violating constitutional rights … the outcome is liable to be a devaluation of constitutional rights (Adalah Case, at p. 513); and see my opinion in  HCJ  8276/05 Adalah, Legal Center for Minority Arab Rights in Israel v. Minister of Defense [8]).

Nevertheless, in view of the abovementioned assumption, I considered the question of whether the Law met the criteria of the limitation clause. I focused on the third criterion of proportionality, known as proportionality sensu stricto. According to this criterion, we must look at the relationship between the social benefit of the law that is under scrutiny and the damage caused by the constitutional violation. On this matter, I can only mention once again the certain harm that will be caused as a result of the entry into Israel of thousands of Palestinians, who have received the status of permanent residents or citizens as a result of marriage to Israeli citizens. On the basis of past data, there is no doubt that a certain percentage of them will be involved in terrorist acts. Indeed, the percentage of those involved in terror is expected to be very low, even negligible. However, even if the extent of the damage that will be caused cannot be assessed, it is clear that it will occur. There is no need to describe the consequences of terrorist acts.

3.    The relationship between social benefit and harm must be examined also on the assumption of a mistake on the part of the person who would negate the Law, as opposed to a mistake on the part of one who holds the view that the Law meets the constitutional criterion. Disqualification of the Law will lead to the entry of thousands of Palestinians into the State following their marriages to Israeli citizens. If it should emerge in the future that those who would disqualify the Law were mistaken in their low estimate of the risk, it will not be possible to turn back the clock. In other words, if – Heaven forbid – it emerges that there is involvement in terrorist acts, it will definitely not be possible to correct the mistake. It may be possible to revoke the status in Israel of those who turn out to be involved in terrorist activity, but this solution will be available only after the damage – harm to human lives – has already been done. On the other hand, if the Law does meet the constitutional criterion, this will lead to harm to Israeli citizens, who are not able to establish families with Palestinians, or to a familial separation between the Israeli spouse and the Palestinian spouse. I am certainly not belittling this harm, and what is more, from a numerical point of view quite a number of Israeli citizens are effected. Nevertheless, this violation of the right to family life of Israeli citizens has to be weighed up against the certain harm, on the basis of past experience, to the lives and persons of Israeli citizens. We must consider another point – one which I mentioned in my opinion in the previous process. None of the judges who are of the opinion that the Law cannot stand, whether in the previous process or in the present one, provided any example or precedent from any other country for a similar situation of a law being struck down.  Israel has been in a constant battle for decades against states and organizations that wish it ill. Even if the status of residents of the Palestinian Authority is not identical to that of nationals of an enemy state, it is more similar to that latter status than to the status of nationals of a friendly state. To the best of my knowledge, there has not been even a single case in which a state permitted entry into its territory of thousands of  nationals of an enemy, whether for the purpose of marriage or any other, at a time of war or of armed struggle. There is no reason for Israel to be a pioneer in this field.

4.    In the framework of her opinion, my colleague Justice M. Naor discussed the arguments on the subject of minors. I concur in her opinion on that issue.

5.    In summary, I stand firmly by the opinion I expressed in the past: the Law passes the test of constitutionality, and therefore, the petitions should be denied.

 

Justice E. Hayut

In the Adalah Case, I concurred in the opinions of those justices who held that although the Citizenship Law is consistent with the values of the State of Israel and was enacted for a proper purpose, the arrangements it provides are not proportionate, and for this reason they do not pass the constitutional test. Following this judgment the Law was amended on 28.3.2007 (hereinafter: the second amendment), and three central changes were introduced: first, sec. 3A1 was added to the Law, whereby the Minister of Interior is permitted, “for special humanitarian reasons” and on the recommendation of a professional committee that he appointed for that purpose, to grant a license for temporary residence in Israel or to approve an application for a permit for an inhabitant of the area whose relative is in Israel lawfully to remain in the State; second, the Law was applied, in addition to inhabitants of the Area, also to residents of Iran, Lebanon, Syria and Iraq (see the Addendum to the Law); third, the definition of prevention for security reasons appearing in sec. 3D of the Law was broadened. The last two amendments in effect extended the scope of the prohibitions established in the Law, and therefore they cannot provide a response to the lack of proportionality which afflicted the arrangements in the Law in its previous format. As opposed to these, the amending arrangement appearing in sec. 3A1 of the Law allows for a license for temporary residence or a permit to stay in the country to be granted “for special humanitarian reasons”, but this is an exception designed for exceptional circumstances and rare cases only, and it therefore cannot repair the defect of lack of proportionality from which the Citizenship Law suffers.

2.    In the Adalah Case I expressed my position that the enactment of laws that provide a response to security needs is one of the means available to us as a state in order to deal with the security risks to which the Israeli public is exposed. I further pointed out that imposing restrictions on family reunification for security reasons is a necessity, and should not be condemned. This is still my opinion. Nevertheless, it seems that the problem of lack of proportionality that taints the Law has not been resolved. I discussed the core of the problem in this context in the Adalah Case in saying that the Law “does not include any individual criteria for examining the security risk of an inhabitant of the Area”, and I added that given the special, complex security situation of the State of Israel, a presumption of risk in the matter of family reunification is warranted, but this presumption should be rebuttable in the framework of an individual, detailed examination which should be permitted in each and every case.

3.    The Citizenship Law, even in its format after the second amendment, continues to preserve the blanket prohibition prescribed in sec. 2 of the Law concerning the granting of status to an inhabitant of the Area (except for a general criterion of age), and largely blocks the path even of those who meet the age criterion or who comply with the requirement concerning the “special humanitarian reasons”.  This is in view of the broadened criteria that were added in relation to the existence of “security-related prevention”; they now also cover a concern about a security risk that stems, inter alia, from the fact that in the place of residence of an applicant who is an inhabitant of the Area, activity is being conducted that is liable to pose a threat to the security of the State of Israel or its citizens. The second amendment to the Citizenship Law does not, therefore, offer any response to the problems emanating from the collective arrangements that it prescribes, and apart from really exceptional cases, no detailed check is carried out by virtue of this Law in relation to those who seek to reunification with their families, and they are not given any practical opportunity to refute in a positive manner the presumption of presenting a danger that is attributed to them. This constitutes a severe violation of the constitutional right to family life of each of the individuals in the group, and it is exacerbated by the fact that this is not a short-term, targeted violation but a violation with long-term consequences. Moreover, the Law was indeed intended to provide a solution to the security needs of the State of Israel, given the armed struggle that the Palestinian terrorist organizations wage against Israel’s citizens. At the same time, the collective nature of the policy anchored in the Citizenship Law – which in fact has the capacity to negate the particular identity of the individuals who belong to that collective – and the disproportionate violation of equality due the arrangements prescribed in the Law, are liable to create a semblance of illegitimate racial profiling which ought to be avoided. When the collective prevention prescribed by the Law remains in place; when the second amendment broadened the collective criteria blocking family reunification between Israeli Arabs and spouses who are inhabitants of the area; and when the people concerned are not given the chance to prove, on the individual level, that they do not pose a security threat, the constitutional defect of lack of proportionality that impaired the Law remains.

4.    My colleague Justice H. Melcer believes that in this case, the “precautionary principle” ought to be applied. On this matter I prefer the stance of my colleague President D. Beinisch. The clear disadvantage of this principle, or at least in the way that my colleague Justice Melcer wishes to implement it, lies in the fact that it ignores the fact that the all-encompassing means adopted in the face of the danger whose prevention is sought, in itself creates dangers and harms that are liable to be significant for society or at least for certain groups therein. Therefore, the conclusion is unavoidable that application of the precautionary principle in the said manner displays great sensitivity to the dangers of only one certain type, and it is not sensitive to other harms that are liable to be caused by the very fact of its implementation. The totality that its application involves does not leave room for a correct balancing between the interests – however important they be – that we are required to protect, and the harms and the violations that may well occur as a result of the implementation of the means in this manner. Implementation of the precautionary principle has, to a great extent, the capacity to divest the third sub-criterion of the requirement of proportionality – which is one of the foundational components of the rules of constitutional review in the Israeli legal system – of all content.

5.    For all the above reasons, I concur in the conclusion reached by my colleague President D. Beinisch and my colleagues Justices E. Levy, E. Arbel and S. Joubran, whereby the Law should be declared void.

 

Justice N. Hendel

Difficult constitutional decisions bring out the best in the work of the judge, and at the same time they expose the weakness of the judicial task. The reasoning in various opinions is rich and even personal in a positive sense. But decision-making is far from an exact science, and far from a world in which there is one correct, clear answer which has the power to persuade all those dealing with the case. Against this backdrop my position will be presented.

Violation of a Constitutional Right

1.    The preliminary question is whether the Citizenship Law, with its amendments (hereinafter: the amended Law) violates a right under Basic Law: Human Dignity and Liberty. In my opinion, the answer is affirmative due to the combination of infringements of two rights: the right to realization of married life in Israel, and the right to equality.

First, I will comment that there is no constitutional right vested in each citizen to bring a foreigner into the borders of his state, even if he is married to that person. A state is entitled to set immigration law, and the hearts’ desire of its citizens cannot dictate policy in this area. This is so in general, and it is particularly so if the partner is a citizen or inhabitant of an enemy state or entity.

As for equality: when the court examines a violation of equality, it must also examine the practical aspects of the outcome, and whether there is clear, unjustified consequential discrimination. It will be stressed that consequential discrimination is not derived from the intention to discriminate. Take, for example, the present case. I do not believe that the purpose of the amended Law is to discriminate. The purpose is security-related. However, the consequence of the amended Law discriminates between the Jewish and the Arab citizens of the State. This consequence constitutes a constitutional violation. This is the cumulative power of the violation of the right to equality and the right to immigration of a partner for the purpose of marriage. To this is added the fact that the prohibition in the amended Law is sweeping, and it is not conditional upon an individual examination of the foreign partner.

In the overall assessment of the violation of the right of the Israeli partner to bring the foreign partner from the Area and of the lack of practical equality, I found that there is a constitutional violation that necessitates an examination of the amended Law according to the limitation clause.

Limitation Clause – Section 8 of the Basic Law

2.    The permit to violate a constitutional right includes several conditions: (a) by law; (b) befitting the values of the State of Israel; (c) enacted for a proper purpose; (d) and to an extent no greater than is required. The last test, that of proportionality, comprises three sub-tests: (1) the test of the rational connection; (2) the test of the means involving the least violation; (3) the test of proportionality in the strict sense. In my view and that of most of my colleagues, it is not difficult to determine that the first three conditions are met, and also the first two sub-tests of proportionality. The disagreement mainly boils down to the third sub-test.

The Test of Proportionality sensu stricto

In the framework of this test, the harm caused to the constitutional right must be weighed against the benefit to the public interest as a result of the violation. In my view, the constitutional right that is violated must first be positioned on the scale of constitutional rights, and the relevant public interest must be juxtaposed to other interests. Such “prioritization” of the rights and interests can assist the court in carrying out the task of constitutional balancing. This is similar to the approach in the United States, where it is customary to rank the constitutional rights on three levels for the purpose of determining the level of judicial scrutiny.

As I mentioned, the prohibition on bringing in a foreign partner who is an inhabitant of the Area, and establishing a family with this partner in Israel, together with the consequential discrimination against Israeli Arab citizens, entails a violation of a constitutional right. But this right, and its violation, is not ranked high on the scale of rights. As opposed to this, the public interest is state security. This interest is highly placed. It is interesting to note that the right to family life does not appear explicitly in the Basic Law, whereas the Law states expressly that “There shall be no violation of the life, body or dignity of any person as such.” From this one can learn that the protected public interest occupies a very high rank on the scale of values of the State of Israel.

4.    The outcome whereby an Israeli citizen who belongs to a particular national group will be prevented from bringing a foreign spouse into the State, without any detailed check of whether that person is dangerous, is harsh. This is one side of the coin. The other side is that concern about injuries to persons relates to a matter of certainty, or at least one of high probability. From the factual data that was submitted it emerges that the benefit deriving from the Law regarding reduction of the probability of future attacks is very considerable. It will be recalled that a “successful” attack is liable to cost the lives of dozens of Israeli citizens, and also those who are “only” badly or moderately injured pay an unbearable price. To this must be added the moral consideration that is cited in the Mishna in Tractate Sanhedrin (4:5), whereby “if any man has caused a single soul to perish ….[it is] as though he had caused a whole world to perish; and if any man saves alive a single soul … [it is] as though he had saved alive a whole world.”

As for violation of a constitutional right, and the consideration of proportionality, regard must be had to the exceptions in the amending Law. I will mention two of these. One is the exception relating to age: the sweeping prohibition is not applicable to a male inhabitant of the Area over the age of 35 years, and a female inhabitant over the age of 25 years. From the data that was presented in this case, it emerges that the age exception reduces the affected group by some 30%. The second  is connected to the Humanitarian Committee (sec. 3A1 of the amended Law). As I see it, the powers of the Committee and the discretion granted to it should be interpreted more widely than is done today. The two exceptions that I have mentioned – age and the Humanitarian Committee – do not cancel out the constitutional violation, but they blunt its intensity.

5.    Decisions on the narrow proportionality test are not all made of the same stuff. There are cases – and such is the case before us – in which the decision is difficult. The two competitors – the right that is violated and the public interest – tug mightily at each end of the decision rope. In these situations, there is a constitutional domain in which more than one answer is possible (similar to the margin of appreciation in the law of the European Union). Any law falling within this domain will be considered constitutional.

We are faced with a difficult case. The decision is a matter of degree. It is not surprising that this issue has twice been brought to court, and that each time, the outcome was determined by a majority of one justice in a bench of eleven justices. Of course, the existence of disagreements does not dictate a particular outcome. But here, ultimately, the difference in the opinions lies, in my opinion, in preferring to prevent the harm caused by the amended Law as opposed to preferring the marginal benefit of the amended Law. These disagreements, too, lead to the conclusion that this case falls within the parameters of constitutionality.

6.    Through this prism I considered the position of the interest of the defending Israel’s security in the ranking of public interests, and the position on the scale of constitutional rights of the constitutional violation with regard to the Israeli partner. I also examined the magnitude of security risk and its extent, as opposed to the damage caused to the basic rights, bearing in mind the exceptions in the amended Law. All this was executed against the backdrop of the factual web that was presented, with an awareness of the possible constitutional domain in this case. In short, my view is that declaring to law to be void is not warranted.

Summary

The amended Law was enacted as a temporary order, which was extended a dozen times. The passage of time, and the many extensions of the amended Law, do not, in my view, help the position of the State. The harsh climate accompanies us all year long, and has done so for a great many years. When we sit as the High Court of Justice, we are bound, in our judicial review, to watch the clock as well. My view is, as stated, that the Law should not be declared void. At the same time, the State would do well to formulate a law that deals with the subject of immigration in the present context and in general. According to the updated notice of the State counsel, this is being pursued energetically. In the event that no such new law is enacted, from the point of view of constitutional review it is to be expected, at the very least, that discussion of any extension of the amended Law will be comprehensive, thorough and substantive. Similarly, it is to be expected that the legislature will be attentive to the changing reality, in order to examine whether the violation of constitutional rights is still justified.

8.    In the final analysis, my view is that the petitions must be denied.

 

Deputy President E. Rivlin

The Issue in Dispute and the Role of the Court

1.    The petitions raise a question about the protection of human rights. The question concerns the imposition of statutory limitations on the right of non-resident foreigners to acquire citizenship by virtue of their marriage to citizens of a particular state, when such foreigners reside in an area hostile to that state. This question lies at the heart of a public dispute. The issue is complex, and the way in which it has been handled illustrates the way in which the Israeli legal system handles questions that spill over into the public and political debate.

2.    In practice, every legal system deals in its own way with the dilemma posed by a question of the type that was raised here. The way it approaches the question is a function of the political system, or the constitutional and social structure, and of the governmental culture. The core role of the constitutional court is to protect human rights, particularly minority rights or rights of other weak groups. This is not an easy task. In its formal sense, democracy is the rule of the majority. In its substantive sense, it is a regime in which minority rights, too, are protected. In order to fulfill its core function in a free society, i.e., the protection of basic rights,  in all legal systems the court must conserve its limited resources.

The resources available to the court are limited. Over two hundred years ago, Alexander Hamilton noted that the judiciary has no control over the “purse” and over the “sword”, hence its weakness. He attributed the weakness of the judiciary also to the fact that “it has no will of its own” – for it decides only those disputes that others bring before it, and it does not initiate decisions that are not based on a genuine conflict:

The Judiciary … has no influence over either the sword of the purse; no direction either of the strength or of the wealth of the society and can take no active resolution whatever. It may truly be said to have neither force nor will (The Federalist no. 78).

Because the judiciary has neither purse nor sword, nor a will of its own, the principal resource available to it is public trust. Descending into the public battlefield, when unnecessary, is liable to dissipate this precious resource. In the past, I have said that refraining from entering the arena of political dispute and showing deference to the political authorities in the appropriate cases is not intended to increase the power of those authorities, but to conserve the resources of the judiciary. This is the dilemma facing every constitutional court  and every court of administrative affairs. On the one hand there is a need for judicial and constitutional and administrative review – review that stands at the center of the work of the court – and on the other hand, there is a desire to refrain from entering the arena of public controversy, an entrance which is liable to use up resources available to the  court. We will illustrate this in one other constitutional system as well as in our system.

The United States: Doctrine of Non-Justiciability

4.    The Third Chapter of the United States Constitution limits federal jurisdiction to cases and controversies. This limitation, when accompanied by the rules of judicial prudence, has shaped the parameters of the standing of a person who brings a case before an American court; in other words, there must exist a personal interest that is likely to be resolved through litigation. The need for the existence of a personal interest is the outcome of the requirement that there be a harm that is not abstract or hypothetical – harm to the litigant who comes to court, and not someone else. To this are added other filters that together come under the aegis of the doctrine of non-justiciability. Justiciability is absent in cases which are not yet ripe for adjudication, or if the subject-matter is theoretical, and in all those cases that are termed “political questions”. Non-justiciability in some of these cases lies, at base, in the principle of separation of powers. Under the rule of lack of ripeness, the United States court will refrain from adjudicating an argument whose validity depends on a future development, which itself might well not eventuate as expected, or not happen at all (see e.g.: Texas v. United States  [11]). A potential violation of a right does not entitle one to relief. Another barrier is found in the doctrine of the theoretical subject, i.e., mootness, that directs the court not to adjudicate a hypothetical or academic dispute, where the judicial decision will not affect the rights of the parties to the process. There is also a lack of justiciability where the question is essentially a “political question”. Non-justiciability in “political questions” reflects a conception according to which questions which the judiciary has neither the tools nor the criteria to resolve. The United States Supreme Court has drawn up guidelines for examining whether a question is a political one with which the Court should not deal: where there is written constitutional provision assigning the matter to the political authority; where there are no obvious judicial criteria than can be applied in order to resolve the question; where the question in dispute cannot be resolved without deciding in advance on policy that is not within the discretion of the Court; where there is a clear and special need to abide by a political decision that has already been made; and where there is a potential for a multiplicity of conflicting decisions on the part of the various authorities on the very same question (Baker v. Carr [12]). Apart from the “political questions”, the United States Supreme Court defers to the political authorities in other matters that fall within their area of expertise: they do so out of recognition that not all matters were intended to pass beneath the rod of judicial discretion, and that there are matters which are better left to be decided by the elected authorities.

5.    One of these matters is that of immigration and entry into the United States; here, the doctrine of deference in the United states reached the peak of its application. It was decided that as a rule, deference in these matters is absolute, and the political powers are vested with plenary power (Jon Feere, “Plenary Power: Should Judges Control U.S. Immigration Policy”, Center for Immigration Studies, Feb. 2009). Thus, for example, the U.S. Supreme Court noted, in 2005 (Clark v. Suarez Martinez [13]) that Congress had the power to introduce legislation that protected the security of the State borders, in addition to the legislation enacted in 2001 (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot) Act of 2001).

This conception of matters of immigration was, inter alia, the outcome of the doctrine of the “political question”, namely, the refusal to adjudicate cases that involved determining policy that ought to be determined by the body that represents the public interest and which is accountable to the public. The connection between immigration and foreign relations, between immigration and national security, and between immigration and other subjects that involve the determination of policy, has formed the basis of non-intervention on the part of the courts. In addition, the U.S. Supreme Court’s approach was served by considerations of institutional inability to make political decisions in the framework of immigration laws which by their nature are created by the political authorities. “Over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens” said the US Supreme Court (Fiallo v. Bell [14]). When security considerations formed the basis for the decision to expel an alien from the United States, the American court refused to intervene, even though the person involved was married to an American citizen who had served in the United States Army. This was stated emphatically: an alien who wishes to enter this country cannot claim a right of entry. Permitting the entry of aliens into the territory of the United States is a privilege conferred by the sovereign on the United States government. This privilege is granted to an alien only in accordance with the conditions that the United States determines. It must be implemented in accordance with and by virtue of the process that is to be set by the United States (Knauff v. Shaughnessy [15]).

There in the United States too, however, and even on matters of immigration, the court does not entirely refuse to regulate the rules, and one can find cases in which the court abandoned the doctrine of plenary power vested in the authorities in those matters (see, e.g., Zadvydas v. Davis [16]).

6.    Our older sister – the American constitutional law system – experienced historical shifts that rocked the boat of case law this way and that, until it stabilized. American history presents us with a clear picture of the dilemma facing constitutional courts in every free legal system: the need to fulfill the core function – protection of human rights – and the need to recruit the necessary resources in order to overcome the difficulties presented by every political culture to the court that fulfills its core function. American history reflects the harsh consequences of Lochnerism – a case that became a concept in the wake of the decision in Lochner v. New York [17], in which the Supreme Court ruled that a New York State law that set an upper ceiling on the number of working hours of bakers was void in that it was unconstitutional. This was a protective labor law, and the judgment aroused widespread, almost universal, criticism as a symbol of excessive intervention in value-based matters, and in matters concerning the regulation of economic policy – in relation to which the court ought to have deferred to the statutory regulation.

7.    The effects of the Great Depression at the end of the 1920s and the beginning of the 1930s cast a dark shadow over the intervention of the courts in economic regulation of Congress, which sought, on its part, to heal the economy in the framework of the laws of the New Deal. During his second term of office, President Franklin Roosevelt, riding the wave of public criticism of the court, proposed the court packing plan, which was designed to cripple the court. The Lochner era came to an end: the new legislation, beginning in 1937, once again respected the choices of the legislature in the economic field, as long as they were supported by some sort of rational basis. Recognition was once again accorded to the broad power of both the various states and the Federal government to regulate economic matters.

8.    The end of the era of Lochnerist intervention was clearly manifest in the foundational decision in United States v. Carolene Products Co. [18]. However, at the very time that intervention in economic policy was terminated, and in the very same decision, the first signs of the renewed flowering of protection of basic human rights appeared. In a historical footnote included in that judgment (footnote 4), the US Court pointed out, albeit with the caution that was a product of its clipped power, that “it is possible that there would be a greater proclivity on its part” for constitutional judicial review, when at stake was a law that violated human rights, or a law that limited the ability of the political process to block unwanted legislation, or a law that discriminated against a discrete and insular minority. The Court formulated the two sides of the coin that was minted in that tempestuous period – respect for the authorities where this was due, and validating laws as long as they were reasonable and logical on the one hand, and on the other hand, simultaneously, a clear and courageous statement that deference would not apply to laws that violate basic rights or laws that discriminate against vulnerable minorities. The way in which the US court dealt with the dilemma of justiciability was to take one step back followed by a courageous step forward. In the foundational footnote that symbolized the beginning of the revival of the US court, the strong protection of freedom of expression, of liberty and equality, of privacy and of personal autonomy, was fashioned. The US court became a beacon from which the light of liberty shone forth.

Israel: On Governance and Accountability

9.    The various legal systems, we said, struggle with the need to fulfill the core function of the court in the framework of the realities in which they operate – each in its own way. The Israeli legal system adopted a path that was different from that chosen by the United States. The American system adopted a rigid approach with respect to the intervention of the courts in matters that were the subject of public controversy; our system chose a different approach due to the reality in which the Israeli courts operate. This reality is affected by legislative failures and by a lack of governance on the part of the executive authority, resulting in an absence of statutory regulation of essential subjects, or acceptance of partial or temporary legislative regulation – as attested to by the Law with which we are dealing, with all its flaws.

In a parliamentary system of government of the Israeli type, the government (the executive) governs by way of application of the normative rules that are fashioned by the parliament. Normally, it is within the power of the executive authority to initiate legislative processes, and even to influence them by means of the support of the majority it enjoys in the legislature. This is governance. But governance has a price. He who exercises power bears responsibility for his actions. He who has sovereignty in the exercise of his powers by virtue of the law assumes accountability vis-à-vis the public. Refraining from making executive and legislative decisions on substantive questions detracts from governance, and it represents a certain denial of accountability. Moreover, transferring the onus of regulating matters that are the responsibility of the executive and the legislative branches to the judiciary imposes upon the latter the consequences of the weakness of the first two. Contrary to what many think, such a choice in fact weakens the judicial authority.

10.  Civilized countries have a clear, comprehensive policy of immigration and of nationalization. In many states, the establishment of norms that regulate the entry of foreigners was intended to ensure that such entry would not impose an economic and security burden upon the citizens and inhabitants, that it would not be detrimental to their health nor to the welfare of the public and its way of life. This is when times are normal.

In times of war or of armed struggle, the nations of the world limit the entry of enemy nationals into the state. These limitations also apply to immigration for the purpose of marriage, and they are recognized by law. Even where there are no security considerations, states limit immigration for the purpose of marriage. European states are constantly tightening conditions for immigration into their territory for demographic reasons. The European Court of Human Rights gave support to the rights of these states to limit matrimonial immigration into their territory. The rules of International law do not recognize a right of immigration for the purpose of matrimony, and they do not impose an obligation upon states to guarantee family reunification in their territory.

11.  And in Israel: instead of a normative, principled and comprehensive regulation of immigration policy, to this day we have bits of arrangements. Temporary orders, made up of assorted scraps, are not an alternative to a comprehensive normative arrangement. The Temporary Order in the present case, too, changes from one moment to the next. Over the years, exceptions and reservations have been inserted into the preliminary prohibition on granting the right of entry and status to an inhabitant of the Area, or to a citizen or inhabitant of an enemy state specified in the Law, most of which were designed to mitigate the prohibition. The absence of a comprehensive legislative arrangement on matters of immigration has led to a situation in which the questions that required comprehensive resolution have once again been laid piecemeal at our door, and we are required to decide once more the question of whether a “temporary order” will remain in force.

The statutory vacuum in the Israel reality forced the Court to depart from the core judicial function and to touch upon questions that are the subject of a heated public controversy. This distancing, which is the result of constraints placed on the courts in Israel, made it necessary to replace doctrinal non-justiciability, which is familiar to us from other legal systems, with discretionary non-justiciability. The doctrine of justiciability in its classic formulation became more moderate, but the logic on which the doctrine was based did not disappear, and it has always formed the basis of the judgments of the Supreme Court. We do not dismiss out of hand questions that are at a remove from the core judicial function – constitutional or administrative – but we do not ignore the need of the Court to choose, from amongst all the issues that are laid at its doorstep, those issues which call for discussion in the existing social and political reality. The further we draw away from the constitutional core, the more we are liable to be asked to pull the chestnuts out of the fire for the political branches. The Court itself determines the parameters of justiciability, as well as the parameters of intervention in the actions of the political authorities. Where the Court is confronted with the question of whether to delve deeply into political, social and economic questions, it is expected to act in accordance with the best rules of deference. Considerations of non-justiciability, which in Israel, as we have said, are differentiated from an independent doctrine of non-justiciability, due to the constitutional structure and the problem of governance, find expression in the arena of deference. Thus, for example, the arena of reasonability outlines the arena in which the administrative authority is authorized to make decisions, according to its discretion. The arena of reasonability is influenced, on its part, by the arena of deference.

Between Deference and Judicial Review: Conservation of Resources for the Sake of Protection of Human Rights

12.  As stated, the resources available to the court, and primarily, public trust, are precious and limited. The court must store as much of them as it can, and refrain from “wasting them”, where possible and appropriate. There will be a day when it will have need of them, when it is called upon to protect the human rights of Israel’s citizens, and primarily, the citizens who belong to the weaker sectors. It needs them in order to protect unpopular views and the right to express them; it needs them in order to ensure liberty; it needs them to ensure the right to equality. It needs them when it is required to protect the minority, the weak and the poor. It must use its strength and power in order to afford unreserved protection of liberty. Deference towards those subjects that are at the heart of political endeavor is in no way intended to detract from judicial review of the court. “Deference” cannot detract from constitutional review: it is designed to secure the resources  necessary for its existence. “Deference” does not mean denial of responsibility; deference is not the withholding of an opinion. On the contrary: it is a condition of strong constitutional review. Indeed, the Court’s abstention from entertaining and deciding on certain subjects is liable to be perceived as a handicap and a weakness. In reality, in this way the courts defend themselves by means of filtering mechanisms. Through these mechanisms, the courts can refrain from dealing with matters which they ought not to be deciding. This is a privilege accorded to the courts, and it is this that conserves their strength and their resources. Thus their accountability retains its position: in the court of the political authorities.

13.  In its protection of human rights, judicial review must be, in the words of Justice Brennan in another context, “fearless, vigorous and uninhibited” (New York Times Co. v. Sullivan [19]. The arena of deference that we designate for the activities of the other authorities will take into account our fundamental constitutional principles and our conception of the balance between the relevant considerations regarding the exercise of judicial review. The special importance of judicial review in those cases in which fundamental human rights are at issue should be recognized. Here it is important for judicial review to utilize the full extent of its power and ability. It will have this ability if it succeeds in refraining from dispersing its legal and social resources that are nurtured by public trust where the area of deference widens.

The Question in Dispute

14.  The issue to be decided here today is of the kind that lies at the core of the judicial function due to the fact that it gives rise to questions of protection of human rights, but at the same time, due to the legislative omission, it touches upon a sharp public controversy and political debate. Our decision will be made on the basis of the rules of constitutional review, while having regard to the principles of deference.

In the petitions before us the question of protection of human rights arises. The quest for equality provides a backdrop to the petitions. Another basic right also underlies the petitions, i.e., the right to family life. There is no doubt that imposing restrictions on immigration in some way violates these basic rights. True, this violation is not in itself directed at Israeli citizens. It violates the basic rights of Israeli citizens only where the realization of their right is conditional upon granting a right to foreigners who reside in radical enemy states, such as Iran or Syria, or to foreigners who live in areas in which intense terrorist activity, targeted at Israeli citizens, occurs and is based. However, even a violation that is not directed, from the outset, at the basic rights of Israeli citizens, justifies constitutional review as long as it exists. The protection of constitutional basic rights is the very heart and the purpose of the authority to exercise judicial review. That is its function. It is the violation of human rights that justifies the examination of the constitutionality of the contents of the Citizenship Law.

The Constitutional Right

15.  I have already expressed my opinion that the constitutional question cannot be divested of the reality in which it is cloaked. It cannot be placed in a world that does not exist – on another planet. The constitutional question is adjudicated here and now – in a state that is hurting, struggling to maintain its existence on a strip of land that is ablaze, a state which tries to avoid becoming “another planet”.[1] The reality is a comprehensive one, for which it is difficult to set analytical boundaries, just as there is no place to draw an analytical, artificial distinction between the case of an Israeli partner who wishes to marry and that of the foreigner whom s/he wishes to marry. The right of the Israeli partner affects a particular segment of the right – a segment in which the foreign spouse is a partner; we cannot close our eyes to the identity of the foreigner, to the political entity to which he or she belongs, to the identity of the elected leaders of that entity and to the circumstances in which the matter is being adjudicated. Since the hearing in the previous petition, the Hamas Organization has taken control of some of the Territories. This reality is a true one, and it must be taken into consideration when, in the framework of the constitutional balance, we are called upon to decide on the constitutionality of the restrictions that are placed on basic rights.

16.  There is no doubt that the Citizenship Law affects the possibility of full realization of the constitutional right to family life and the constitutional right to equality. It does not negate these rights. It detracts from their full scope. The Law does not prevent the Israeli spouse from marrying a partner from the Area; neither does it prevent the Israeli spouse from realizing the right to family life in the Area, or in any other place outside of Israel. However, it detracts from the right of the Israeli spouse to establish the family unit within the borders of Israel in those cases in which the foreign spouse is an inhabitant of the Area specified in the Law before us, and belongs to one of those groups whose entry from the Area into Israel the Minister of the Interior was empowered to prevent. The result of this is also a violation of equality, in that most of the Israeli spouses who marry inhabitants of this Area are Arab Israelis.

17.  Moreover, the defined range of human rights should not be contracted in times of emergency. Neither should different balancing criteria be adopted in difficult periods. The Basic Laws do not recognize two systems of laws, one of which applies in times of calm and the other, in times of emergency. Israeli constitutional law has a uniform approach to human dignity and liberty both in times of peace and in times of danger. The statement of Justice Holmes in the case of Schenck v. United States([20]), according to which things that are said in times of peace may sometimes not be said in times of war, is not understood as a call to deviate from the constitutional criteria themselves in times of emergency. This applies to freedom of expression, and to other basic rights. The criteria on the basis of which we examine restrictions on human rights are uniform at all times. The criteria are identical. But we should recall that their implementation is affected by the factual situation.

The question which has returned to our doorstep today is, therefore, whether the conditions that permit a violation of the basic rights that we have discussed have been met.

The Conditions for Detracting from a Constitutional Right

18.  The limitation clause of Basic Law: Human Dignity and Liberty sets four conditions for violating a constitutional right: the violation of the basic right must be by law or according to a law; the law must befit the values of the State of Israel; it must be enacted for a proper purpose; and its violation of the right must be to an extent no greater than required. Most agree that the first and second conditions are met here. The dispute turns on the question of whether the third and fourth conditions are met, i.e., if the Law was enacted for a proper purpose and if its violation of constitutional rights is greater than necessary. The first of these conditions deals with the purpose, and the other – with the appropriate means of realizing this purpose.

It seems to me that there can also be no dispute that the Law was enacted for a proper purpose. The purpose of the Law in this case is security-related, and it is to reduce, insofar as possible, the security risk posed by the foreign spouses who enter Israel. At the basis of the legislation lay the security concern about involvement in terrorist activity on the part of the Palestinian spouses, who hold Israeli identity cards by virtue of their marriage to Israeli partners. The concern is about abuse of this status in Israel – a status which allows for free movement between the area of the Palestinian Authority and Israel. History shows that this is not a baseless concern. This purpose is a proper one.

The fourth condition listed in the limitation clause requires that the violation of the right be no greater than is necessary. It is not enough that the purpose is proper: the means that are adopted for its realization must also be proper, i.e., proportional. The words “to an extent no greater than is necessary” have been interpreted in Israeli case law, following foreign case law, as implying three sub-criteria: that of suitability (the rational connection); that of necessity (the means which involves the least violation); and that of proportionality. The first sub-criterion requires the existence of a rational connection between the (proper) purpose and the means selected for its realization. This is the criterion of common sense and of life experience. From amongst the  means that create the rational connection between the proper purpose and the means, the means which involves the least violation should be chosen – that is the second sub-criterion. The third sub-criterion is that of overall balance. It looks at whether the relationship between the benefit derived from achieving the (proper) purpose – prevention of risk – and the damage caused (as a result of the violation of the constitutional rights  achieves a proper balance between the needs of the general population and the harm to the individual.

The third sub-criterion (of the three sub-conditions of the fourth condition – the requirement of proportionality) i.e., the criterion of relativity, imposes the task of striking the balance on the court. This balance is not detached from the examination conducted by the court in the framework of the first two sub-criteria. Moreover, in many cases, once it has been proven that there is a rational connection between the purpose of the law and the means it selected (the first sub-criteria), and once the Court is convinced that the purpose of the law cannot be achieved, as it stands, by recourse to less harmful means (the second sub-criterion), it is a short road to the conclusion that the proper overall balance is achieved as well (the third sub-criterion). However, a positive decision in relation to the first two criteria often led to a rapid decision on the question of the third sub-criterion (see, e.g., R. v. Keegstra [1990] 3 S.C.R. 69; McKinney v. University of Guelph [1990 3 S.C.R. 229). This natural channel led some to the conclusion that the third sub-criterion is in fact a superfluous stage in the constitutional examination.

I believe that there is no room for a sweeping conclusion that if the first two sub-criteria are satisfied, the question of the existence of the condition of proportionality will necessarily be answered affirmatively. Indeed, the third sub-criterion should not be isolated from the other two; the response to each of these has an understandable effect on the others. However, the importance of the last criterion should not be underestimated, just as the importance of each of the sub-criteria in itself should not be inflated. These sub-criteria should be implemented, with sensitivity being shown to the circumstances of each case  (Libman v. Attorney General of Quebec [23]). This is not a matter of guidelines alone. The sub-criteria, as adopted, outline the way in which judicial review should be exercised with respect to the condition of proportionality, and in certain senses, they also set the parameters of the court’s competence. They allow for a uniform, sophisticated examination of the question of whether the condition of proportionality has been met. The Court will, therefore, refrain from applying the proportionality criteria in a mechanical or literal manner when it wishes to declare the law invalid.

The criteria of proportionality come together to examine the relationship between the cost of the harm to the protected right and the expected utility embodied in the proper purpose of the law – prevention of a security risk, or if you will, in the logical formulation coined by Learned Hand: an examination of the relationship between the cost of the legislation (C) and the probability (P) of injury (L) without it. In the present case, even if the probability of damage is low, its magnitude – both physical and spiritual harm – is almost insurmountable.

19.  In the present case, the first two sub-criteria of the fourth condition were met with respect to the condition of proportionality. First, there is a rational connection between the purpose of the Law and the means it selected. The prohibition on the entry of foreign spouses to Israel prevents the risk that they present. The fact that it was allegedly possible to realize the purpose of the Law by using other means that were not adopted does not necessarily indicate that the means that was selected is not rational.

With respect to the second sub-criterion, too, it would seem to be generally agreed that the individual examination causes less harm. However, it is also clear that the individual examination of those who seek to settle in Israel does not realize the purpose of the Law to the same extent as a blanket prohibition on their entry. “In light of the central value of human life that the Law seeks to protect, it is clear that a sweeping prohibition will always be more effective – from the point of view of realization of the purpose of reducing the security risk as much as possible – than the individual examination (President Barak in the first petition).

Still to be decided, therefore, is the question concerning the third sub-criterion of the condition of proportionality – that of relativity, i.e., the question of sensu stricto proportionality: is the relationship between the benefit derived from achieving the proper purpose of the Law and the harm caused by it proportional? This examination should be carried out against the background of the accepted distinction between interest and right.

Interest as opposed to Right

20.  The criterion of balance between the means adopted and the purpose underlying the law is derived from the question of the definition of the value for the sake of which the constitutional right is violated: is it a private right or a public right? The case law, even that which preceded the Basic Law, created a distinction between the criterion of vertical balance (between a right and a public interest) and the criterion of horizontal balance (between rights of equal weight). However this distinction sometimes presents a difficulty, stemming from the artificiality that often lies in the definition of the public interest as distinct from the right of the individual.  [The] public, which has an interest, is comprised of individuals.  And when the public interest is dissected into its components, aggregate individual rights are exposed. Thus, for example, when we are dealing with the security of the public – a public interest in our language – we are talking about nothing other than the right to life and to bodily integrity of each member of the public. This categorization is likely, however, in this case, to have implications for the balance on which the requirement of proportionality is based.

21.  The value of public security normally assumes an abstract form; the tendency is to view it as a non-specific public interest. Often, the nature of the anticipated harm to public security is not tangible. A person’s right to life, on the other hand, is a concrete, tangible right. It is almost an ultimate right; it is the right of people to life – and every one of these people is a world in himself. It is designed to protect people as individuals. As we have said, the distinction between  the two – the interest and the right – is sometimes difficult, as we see from the present case. Apparently, we are dealing with a value in the category of interest – public interest – but in this case, the image of the public become sharper and the danger becomes focused. We are not looking at an abstract public, but at the faces of those who are liable to be hurt in the next terror attack. We can envision the horror of the harm. This is not the abstract concern for public welfare that we have encountered in previous cases. Public security here means the actual right to life, and this is what the Law seeks to protect. The attack that the Law seeks to prevent is directed at certain people, individuals, Moslems, Jews, Christians and Buddhists, who live with us. These people – each and every one of them – have a vested right to life. They have not appeared physically before us today because no one knows what the future holds for him. But their right stands before us here and now.

The Overall Balance

22.  In the framework of the previous petition, there was no dispute concerning the benefit of the disputed legislation, and it was agreed by the majority of my colleagues that “detailed examination of those who belong to those population groups that have a proven potential for posing risks to security and to life, is indeed likely to reduce the harm to the ability to establish family life in Israel, but as opposed to this it will not ensure in an appropriate manner the security of the public.” It has been proven in the past that terrorist organizations will recruit a spouse who is an inhabitant of the Area to their ranks only after that spouse has acquired a permit allowing him/her to enter Israel and to move about freely. In the task of balancing between reducing the carnage and ensuring life on the one hand, and the harm caused to some Israeli citizens who wish to live with foreign spouses in Israel – the benefit [of the Law] exceeds the damage.

The limitation imposed in the Temporary Order does not apply, ab initio, to marriage to Palestinians who live in states which are no longer enemy states – Egypt and Jordan. It applies to those who live in the Area, from which enemy action emerges, or nationals of states that advocate incessantly for the destruction of Israel. In the meantime, additional concessions have been introduced into the Law for those who seek to immigrate to Israel for the purpose of marriage. On our recommendation, a provision was also added to the Law to allow for approving an entry permit in specific cases in which weighty humanitarian reasons justify so doing. The benefit therefore prevails, in the overall balance, over the damage in the legislation. Damage of another type is not that which is found in the existing legislation, but which lies in the lack of a responsible, serious and complete regulation of the matter of immigration to Israel. In the absence of an arrangement, the Temporary Order was returned to us for resolution. In an overall and responsible balance, we cannot void it and leave, in its place, a dangerous legislative vacuum which no-one knows when it will be filled.

My opinion, therefore, is that the petitions must be denied.

 

 

Decided as per the majority opinions of Deputy President E. Rivlin and Justices A. Grunis, M. Naor, E. Rubinstein, H. Melcer and N. Hendel; as against the dissenting opinions of President D. Beinisch and Justices: E.E. Levy, E. Arbel, S. Joubran and E. Hayut, to cancel the order nisi issued by the Court and to deny the petitions, with no order for costs.

 

16 Tevet 5772

January 11, 2012

 

 

                  

 

 

 

 

CrimA 6659/06

CrimA 1757/07

CrimA 8228/07

  CrimA 3261/08

 

1 . A

2.  B

v

State of Israel

 

 

The Supreme Court sitting as the Court of Criminal Appeals

[5 March 2007]

Before President D. Beinisch and Justices E.E. Levy, A. Procaccia

 

 

Appeals of the decisions of the Tel-Aviv-Jaffa District Court (Justice Z. Caspi) on 16 July 2006, 19 July 2006, 13 February 2007 and 3 September 2007, and the decision of the Tel-Aviv-Jaffa District Court (Justice D. Rozen) on 20 March 2008.

 

Legislation cited:

Internment of Unlawful Combatants Law, 5762-2002

Emergency Powers (Detentions) Law, 5739-1979

 

Israel Supreme Court cases cited:

[1]        CrimFH 7048/97 A v. Minister of Defence [2000] IsrSC 44(1) 721.

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

[3]        HCJ 9098/01 Ganis v. Ministry of Building and Housing [2005] IsrSC 59(4) 241; [2004] IsrLR 505.

[4]        HCJ 769/02 Public Committee against Torture in Israel v. Government of Israel (2006) (unreported).

[5]         HCJ 393/82 Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [1983] IsrSC 37(4) 785.

[6]        HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [2004] IsrSC 58(5) 807; [2004] IsrLR 264.

[7]        HCJ 7015/02 Ajuri v. IDF Commander in West Bank [2002] IsrSC 56(6) 352; [2002-3] IsrLR 83.

[8]        HCJ 3239/02 Marab v. IDF Commander in Judaea and Samaria [2003] IsrSC 57(2) 349; [2002-3] IsrLR 173.

[9]        HCJ 7957/04 Marabeh v. Prime Minister of Israel [2006] IsrSC 60(2) 477; [2005] (2) IsrLR 106. 

[10]      HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of the Interior (2006) (not yet reported); [2006] (1) IsrLR 442.

[11]      HCJ 2599/00 Yated, Children with Down Syndrome Parents Society v. Ministry of Education [2002] IsrSC 56(5) 834.

[12]      HCJ 4542/02 Kav LaOved Worker's Hotline v. Government of Israel [2006] (1) IsrLR 260.

[13]      HCJ 9132/07 Elbassiouni v. Prime Minister (2008) (unreported).

[14]      ADA 8607/04 Fahima v. State of Israel [2005] IsrSC 59(3) 258.

[15]      HCJ 554/81 Beransa v. Central Commander [1982] IsrSC 36(4) 247.

[16]      HCJ 11026/05 A v. IDF Commander (2005) (unreported).

[17]       CrimA 3660/03 Abeid v. State of Israel (2005) (unreported).

[18]      HCJ 1853/02 Navi v. Minister of Energy and National Infrastructures (2003) (unreported).

[19]      HCJ 6055/95 Tzemach v. Minister of Defense [1999] IsrSC 53(5) 241; [1998-9] IsrLR 635.

[20]      HCJ 4827/05 Man, Nature and Law - Israel Environmental Protection Society v. Minister of the Interior (2005) (unreported).

[21]      CA 7175/98 National Insurance Institute v. Bar Finance Ltd (in liquidation) (2001) (unreported).

[22]      HCJ 5319/97 Kogen v. Chief Military Prosecutor [1997] IsrSC 51(5) 67; [1997] IsrLR 499.

[23]      CrimA 4596/05 Rosenstein v. State of Israel (2005) (unreported); [2005] (2) IsrLR 232.

[24]      CrimA 4424/98 Silgado v. State of Israel [2002] IsrSC 56(5) 529.

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

[26]      HCJ 4769/95 Menahem v. Minister of Transport [2003] IsrSC 57(1) 235.

[27]      HCJ 3434/96 Hoffnung v. Knesset Speaker [1996] IsrSC 50(3) 57.

[28]      HCJ 6893/05 Levy v. Government of Israel [2005] IsrSC 59(2) 876.

[29]      HCJ 5016/96 Horev v. Minister of Transport [1997] IsrSC 51(4) 1; [1997] IsrLR 149.

[30]      HCJ 5627/02 Saif v. Government Press Office [2004] IsrSC 58(5) 70; [2004] IsrLR 191.

[31]      EA 2/84 Neiman v. Chairman of Central Elections Committee for Tenth Knesset [1985] IsrSC 39(2) 225;  IsrSJ 8 83.

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

[33]      HCJ 450/97 Tenufa Manpower and Maintenance Services Ltd. v. Minister of Labour and Social Affairs [1998] IsrSC 52(2) 433.

[34]      AAA 4436/02 Tishim Kadurim Restaurant, Members' Club v. Haifa Municipality [2004] IsrSC 58(3) 782.

[35]      HCJ 2967/00 Arad v. Knesset [2000] IsrSC 54(2) 188.

[36]      CrimApp 8780/06 Sarur v. State of Israel (2006) (unreported).

[37]      HCJ 403/81 Jabar v. Military Commander [1981] IsrSC 35(4) 397.

[38]      HCJ 102/82 Tzemel v. Minister of Defence [1983] IsrSC 37(3) 365.

[39]      ADA 4794/05 Ufan v. Minister of Defence (2005) (unreported).

[40]      ADA 7/94 Ben-Yosef v. State of Israel (1994) (unreported).

[41]      ADA 8788/03 Federman v. Minister of Defence [2004] IsrSC 58(1) 176.

[42]      HCJ 5445/93 Ramla Municipality v. Minister of the Interior [1996] IsrSC 50(1) 397.

[43]        HCJ 2159/97 Ashkelon Coast Regional Council v. Minister of the Interior [1998] IsrSC 52(1) 75.

[44]      HCJ 253/88 Sajadia v. Minister of Defence [1988] IsrSC 42(3) 801.

[45]      ADA 334/04 Darkua v. Minister of the Interior [2004] IsrSC 58(3) 254.

[46]      HCJ 4400/98 Braham v. Justice Colonel Shefi [1998] IsrSC 52(5) 337.

[47]      HCJ 11006/04 Kadri v. IDF Commander in Judaea and Samaria (2004) (unreported).

[48]      CrimApp 3514/97 A v. State of Israel (1997) (unreported).

[49]      HCJ 5994/03 Sadar v. IDF Commander in West Bank (2003) (unreported).

[50]      CrimA 5121/98 Yissacharov v. Chief Military Prosecutor [2006]  (unreported), 2006 (1) IsrLR 320.

[51]      HCJ 3412/93 Sufian v. IDF Commander in Gaza Strip [1993] IsrSC 47(2) 843.

[52]      HCJ 6302/92 Rumhiah v. Israel Police [1993] IsrSC 47(1) 209.

[53]         HCJ 2901/02 Centre for Defence of the Individual v. IDF  Commander in West Bank [2002] IsrSC 56(3) 19.

[54]    CrimA 1221/06 Iyyad v. State of Israel (2006) (unreported).

 

 

For the appellants - H. Abou-Shehadeh

For the respondent - Z. Goldner, O.J. Koehler, S. Nitzan, Y. Roitman.

 

JUDGMENT

 

President D. Beinisch:

Before us are appeals against the decisions of the Tel-Aviv-Jaffa District Court (Justice Z. Caspi), in which the internment of the appellants under the Internment of Unlawful Combatants Law, 5762-2002 (hereinafter: "the Internment of Unlawful Combatants Law" or "the Law") was upheld as lawful. Apart from the particular concerns of the appellants, the appeals raise fundamental questions concerning the interpretation of the provisions of the Internment of Unlawful Combatants Law and the extent to which the Law is consistent with international humanitarian law, as well as the constitutionality of the arrangements prescribed in the Law.

The main facts and sequence of events

1.  The first appellant is an inhabitant of the Gaza Strip, born in 1973, who was placed under administrative detention on 1 January 2002 by virtue of the Administrative Detentions (Temporary Provision) (Gaza Strip Region) Order (no. 941), 5748-1988. The detention of the first appellant was extended from time to time by the Military Commander and upheld on judicial review by the Gaza Military Court. The second appellant is also an inhabitant of Gaza, born in 1972, and he was placed under administrative detention on 24 January 2003 pursuant to the aforesaid Order. The detention of the second appellant was also extended from to time and reviewed by the Gaza Military Court.

On 12 September 2005 a statement was issued by the Southern District Commander with regard to the end of military rule in the region of the Gaza Strip. On the same day, in view of the change in circumstances and also the change in the relevant legal position, internment orders were issued against the appellants; these were signed by the Chief of Staff by virtue of his authority under s. 3 of the Internment of Unlawful Combatants Law, on which the case before us focuses. On 15 September 2005 the internment orders were brought to the notice of the appellants. At a hearing that took place pursuant to the Law, the appellants indicated that they did not wish to say anything, and on 20 September 2005 the Chief of Staff decided that the internment orders under the aforesaid Law would remain in force.

2.  On 22 September 2005 a judicial review hearing began in the Tel-Aviv-Jaffa District Court (Justice Z. Caspi) in the appellants' case. On 25 January 2006 the District Court held that there had been no defect in the procedure of issuing internment orders against the appellants, and that all the conditions laid down in the Internment of Unlawful Combatants Law were satisfied, including the fact that their release would harm state security. The appellants appealed this decision to the Supreme Court, and on 14 March 2006 their appeal was denied (Justice E. Rubinstein). In the judgment it was held that the material presented to the court evinced the appellants' clear association with the Hezbollah organization, as well as their participation in acts of combat against the citizens of Israel prior to their detention. The court emphasized in this context the personal threat presented by the two appellants and the risk that they would resume their activities if they were released, as could be seen from the material presented to the court.

3.  On 9 March 2006 the periodic judicial review pursuant to s. 5(c) of the Law began in the District Court. In the course of this review, not only were the specific complaints of the appellants against their internment considered, but also fundamental arguments against the constitutionality of the Law, in the framework of an indirect attack on its provisions. On 16 July 2006 the District Court gave its decision with regard to the appellant's specific claims. In this decision it was noted that from the information that was presented to the court it could be seen that the appellants were major activists in the Hezbollah organization who would very likely return to terrorist activities if they were released now, and that their release was likely to harm state security. On 19 July 2006 the District Court gave its decision on the fundamental arguments raised by the appellants concerning the constitutionality of the Law. The District Court rejected the appellants' argument in this regard too, and held that the Law befitted the values of the State of Israel, its purpose was a proper one and its violation of the appellants' rights was proportionate. The court said further that in its opinion the Law was also consistent with the principles of international law. The appeal in CrimA 6659/06 is directed at these two decisions of 16 July 2006 and 19 July 2006.

On 13 February 2007 the District Court gave a decision in a second periodic review of the appellants' detention. In its decision the District Court approved the internment orders, discussed the appellants' importance to the activity of the Hezbollah organization as shown by the testimonies of experts who testified before it and said that their detention achieved a preventative goal of the first order. The appeal in CrimA 1757/07 is directed at this decision.

On 3 September 2007 the District Court gave its decision in the third periodic review of the appellants' internment. In its decision the District Court noted that the experts remained steadfast in their opinion that it was highly probable that the two appellants would resume their terrorist activity if they were released, and as a result the operational abilities of the Hezbollah infrastructure in the Gaza Strip would be enhanced and the risks to the State of Israel and its inhabitants would increase. It also said that the fact that the Hamas organization had taken control of the Gaza Strip increased the aforesaid risks and the difficulty of contending with them. The court emphasized that there was information with regard to each of the appellants concerning their desire to resume terrorist activity if they were released, and that they had maintained their contacts in this area even while they were imprisoned. In such circumstances, the District Court held that the passage of time had not reduced the threat presented by the appellants, who were the most senior persons in the Hezbollah terrorist infrastructure in the Gaza Strip, and that there was no basis for cancelling the internment orders made against them. The appeal in CrimA 8228/07 is directed at this decision.

On 20 March 2008 the District Court gave its decision in the fourth periodic review of the appellants' detention. During the hearing, the court (Justice D. Rozen) said that the evidence against each of the two appellants contained nothing new from recent years. Nevertheless, the court decided to approve their continued internment after it found that each of the two appellants was closely associated with the Hezbollah organization; both of them were intensively active in that organization; the existing evidence regarding them showed that their return to the area was likely to act as an impetus for terrorist attacks, and the long period during which they had been imprisoned had not reduced the danger that they represent. The appeal in CrimA 3261/08 was directed at this decision.

Our judgment therefore relates to all of the aforesaid appeals together.

The arguments of the parties

4.  The appellants' arguments before us, as in the trial court, focused on two issues: first, the appellants raised specific arguments concerning the illegality of the internment orders that were made in their cases, and they sought to challenge the factual findings reached by the District Court with regard to their membership in the Hezbollah organization and their activity in that organization against the security of the State of Israel. Secondly, once again the appellants indirectly raised arguments of principle with regard to the constitutionality of the Law. According to them, the Law in its present format violates the rights to liberty and dignity enshrined in Basic Law: Human Dignity and Liberty, in a manner that does not satisfy the conditions of the limitation clause in the Basic Law. The appellants also claimed that the Law is inconsistent with the rules of international humanitarian law that it purports to realize. Finally the appellants argued that the end of Israel's military rule in the Gaza Strip prevents it, under the laws of war, from detaining the appellants.

The state's position was that the petitions should be denied. With regard to the specific cases of the appellants, the state argued that the internment orders in their cases were made lawfully and they were in no way improper. With regard to the arguments in the constitutional sphere, the state argued that the law satisfies the tests of the limitation clause in Basic Law: Human Dignity and Liberty, since it was intended for a proper purpose and its violation of personal liberty is proportionate. With regard to the rules of international law applicable to the case, the state argued that the Law is fully consistent with the norms set out in international law with regard to the detention of "unlawful combatants".

5.  In order to decide the questions raised by the parties before us, we shall first address the background that led to the enactment of the Internment of Unlawful Combatants Law and its main purpose. With this in mind, we shall consider the interpretation of the statutory definition of "unlawful combatant" and the conditions that are required to prove the existence of a ground for detention under the law. Thereafter we shall examine the constitutionality of the arrangements prescribed in the law and finally we shall address the specific detention orders made in the appellants' cases.

The Internment of Unlawful Combatants Law - background to its enactment and its main purpose

6.  The Internment of Unlawful Combatants Law gives the state authorities power to detain "unlawful combatants" as defined in s. 2 of the Law, i.e. persons who participate in hostile acts or who are members of forces that carry out hostile acts against the State of Israel, and who do not fulfil the conditions that confer prisoner of war status under international humanitarian law. As will be explained below, the Law allows the internment of foreign persons who belong to a terrorist organization or who participate in hostile acts against the security of the state, and it was intended to prevent these persons from returning to the cycle of hostilities against Israel.

The original initiative to enact the Law arose following the judgment in CrimFH 7048/97 A v. Minister of Defence [1], in which the Supreme Court held that the state did not have authority to hold Lebanese nationals in detention by virtue of administrative detention orders, if the sole reason for their detention was to hold them as "bargaining chips" in order to obtain the release of captives and missing servicemen. Although the original bill came into being against the background of a desire to permit the holding of prisoners as "bargaining chips", the proposal underwent substantial changes during the legislative process after many deliberations on this matter in the Knesset Foreign Affairs and Defence Committee, chaired by MK Dan Meridor. On 4 March 2002, the Internment of Unlawful Combatants Law was passed by the Knesset. Its constitutionality has not been considered by this court until now.

At the outset it should be emphasized that the examination of the historical background to the enactment of the Law and the changes that were made to the original bill, what was said during the Knesset debates, the wording of the Law as formulated at the end of the legislative process, and the effort that was made to ensure that it conformed to the provisions of international humanitarian law evident from the purpose clause of the statute, which we shall address below -  all show that the Internment of Unlawful Combatants Law as it crystallized in the course of the legislative process was not intended to allow hostages to be held as "bargaining chips" for the purpose of obtaining the release of Israeli captives and missing servicemen being held in enemy territory, as alleged by the appellants before us. The plain language of the Law and its legislative history indicate that the Law was intended to prevent a person who endangers the security of the state due to his activity or his membership of a terrorist organization from returning to the cycle of combat. Thus, for example, MK David Magen, who was chairman of the Foreign Affairs and Defence Committee at the time of the debate in the plenum of the Knesset prior to the second and third readings, said as follows:

'The draft law is very complex and as is known, it gave rise to many disagreements during the Committee's deliberations. The Foreign Affairs and Defence Committee held approximately ten sessions at which it discussed the difficult questions raised by this Bill and considered all the possible ramifications of its passing the second and third readings. The Bill before you is the result of considerable efforts to present an act of legislation whose provisions are consistent with the rules of international humanitarian law and which satisfies the constitutional criteria, while being constantly mindful of and insistent upon maintaining a balance between security and human rights...

I wish to emphasize that the Bill also seeks to determine that a person who is an unlawful combatant, as defined in the new Law, will be held by the state as long as he represents a threat to its security. The criterion for interning a person is that he is dangerous. No person should be interned under the proposal as a punishment or, as many tend to think erroneously, as a bargaining chip. No mistake should be made in this regard. Nonetheless, we should ask ourselves whether it is conceivable that the state should release a prisoner who will return to the cycle of hostilities against the State of Israel?' [emphasis added].

The Law was therefore not intended to allow prisoners to be held as "bargaining chips". The purpose of the Law is to remove from the cycle of hostilities a person who belongs to a terrorist organization or who participates in hostile acts against the State of Israel. The background to this is the harsh reality of murderous terrorism, which has for many years plagued the inhabitants of the state, harmed the innocent and indiscriminately taken the lives of civilians and servicemen, the young and old, men, women and children. In order to realize the aforesaid purpose, the Law applies only to persons who take part in the cycle of hostilities or who belong to a force that carries out hostile acts against the State of Israel, and not to innocent civilians. We shall return to address the security purpose of the Law below.

Interpreting the provisions of the Law

7. As we have said, in their arguments before us the parties addressed in detail the question of the constitutionality of the arrangements prescribed in the Law. In addition, the parties addressed at length the question of whether the arrangements prescribed in the Internment of Unlawful Combatants Law are consistent with international law. The parties addressed this question, inter alia, because in s. 1 of the Law, which is the purpose section, the Law states that it is intended to realize its purpose "in a manner that is consistent with the commitments of the State of Israel under the provisions of international humanitarian law." As we shall explain below, this declaration is a clear expression of the basic outlook prevailing in our legal system that the existing law should be interpreted in a manner that is as consistent as possible with international law.

In view of the two main focuses of the basic arguments of the parties before us - whether the arrangements prescribed in the Law are constitutional and whether they are consistent with international humanitarian law - we should clarify that both the constitutional scrutiny from the viewpoint of the limitation clause and the question of compliance with international humanitarian law may be affected by the interpretation of the arrangements prescribed in the Law. Before deciding on the aforesaid questions, therefore, we should first consider the interpretation of the principal arrangements prescribed in the Internment of Unlawful Combatants Law. These arrangements will be interpreted in accordance with the language and purpose of the Law, and on the basis of two interpretive presumptions that exist in our legal system: one, the presumption of constitutionality, and the other, the presumption of interpretive compatibility with the norms of international law - both those that are part of Israeli law and those that Israel has taken upon itself amongst its undertakings in the international arena.

8.  Regarding the presumption of constitutionality: in our legal system the legislature is presumed to be aware of the contents of the Basic Laws and their ramifications for every statute that is enacted subsequently. According to this presumption, the examination of a provision of statute involves an attempt to interpret it so that it is consistent with the protection that the Basic Laws afford to human rights. This realizes the presumption of normative harmony, whereby "we do not assume that a conflict exists between legal norms, and every possible attempt is made to achieve 'uniformity in the law' and harmony between the various norms" (A. Barak, Legal Interpretation - the General Theory of Interpretation (1992), at p. 155). In keeping with the presumption of constitutionality, we must, therefore, examine the meaning and scope of the internment provisions in the Internment of Unlawful Combatants Law while aspiring to uphold, insofar as possible, the provisions of Basic Law: Human Dignity and Liberty. It should immediately be said that the internment powers prescribed in the Law significantly and seriously violate the personal liberty of the prisoner. This violation is justified in appropriate circumstances in order to protect state security. However, in view of the magnitude of the violation of personal liberty, and considering the exceptional nature of the means of detention that are prescribed in the Law, an interpretive effort should be made in order to minimize the violation of the right to liberty as much as possible so that it is proportionate to the need to achieve the security purpose and does not go beyond this. Such an interpretation will be compatible with the basic conception prevailing in our legal system, according to which a statute should be upheld by interpretive means and the court should refrain, insofar as possible, from setting it aside on constitutional grounds. In the words of President A. Barak:

'It is better to achieve a reduction in the scope of a statute by interpretive means rather than  having to achieve the same reduction by declaring a part of a statute void because it conflicts with the provisions of a Basic Law.... A reasonable interpretation of a statute is preferable to a decision on the question of its constitutionality' (HCJ 4562/92 Zandberg v. Broadcasting Authority [2], at p. 812; see also HCJ 9098/01 Ganis v. Ministry of Building and Housing [3], at p. 276).

9. With respect to the presumption of conformity to international humanitarian law: as we have said, s. 1 of the Law declares explicitly that its purpose is to regulate the internment of unlawful combatants "… in a manner that is consistent with the commitments of the State of Israel under the provisions of international humanitarian law." The premise in this context is that an international armed conflict prevails between the State of Israel and the terrorist organizations that operate outside Israel (see HCJ 769/02 Public Committee against Torture in Israel v. Government of Israel [4], at paras. 18, 21; see also A. Cassese, International Law (second edition, 2005), at p. 420).

The international law that governs an international armed conflict is anchored mainly in the Hague Convention (IV) Respecting the Laws and Customs of War on Land (1907) (hereinafter: "the Hague Convention") and the regulations appended to it, whose provisions have the status of customary international law (see HCJ 393/82 Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [5], at p. 793; HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [6], at p. 827; HCJ 7015/02 Ajuri v. IDF Commander in West Bank [7], at p. 364; Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, 1949 (hereinafter: "Fourth Geneva Convention"), whose customary provisions constitute a part of the law of the State of Israel and some of which have been considered in the past by this court (Ajuri v. IDF Commander in West Bank [7], at page 364; HCJ 3239/02 Marab v. IDF Commander in Judaea and Samaria [8]; HCJ 7957/04 Marabeh v. Prime Minister of Israel [9], at para. 14); and the Protocol Additional to the Geneva Convention of 12 August 1949 Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1977 (hereinafter: "First Protocol"), to which Israel is not a party, but whose customary provisions also constitute a part of the law of the State of Israel (see Public Committee against Torture in Israel v. Government of Israel [4], at para. 20). In addition, where there is a lacuna in the laws of armed conflict set out above, it is possible to fill it by resorting to international human rights law (see Public Committee against Torture in Israel v. Government of Israel [4], at para. 18; see also Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (1996) ICJ Rep. 226, at page 240; Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 43 ILM 1009 (2004)).

It should be emphasized that no one in this case disputes that an explicit statutory provision enacted by the Knesset overrides the provisions of international law (see in this regard President A. Barak in HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of the Interior [10], at para. 17). However, according to the presumption of interpretive consistency, an Israeli act of legislation should be interpreted in a manner that is consistent, insofar as possible, with the norms of international law to which the State of Israel is committed (see HCJ 2599/00 Yated, Children with Down Syndrome Parents Society v. Ministry of Education [11], at p. 847; HCJ 4542/02 Kav LaOved Worker's Hotline v. Government of Israel [12], at para. 37). According to this presumption, which as we have said is clearly expressed in the purpose clause of the Internment of Unlawful Combatants Law, the arrangements prescribed in the Law should be interpreted in a manner that is as consistent as possible with the international humanitarian law that governs the matter.

Further to the aforesaid it should be noted that when we approach the task of interpreting provisions of the statute in a manner consistent with the accepted norms of international law, we cannot ignore the fact that the provisions of international law that exist today have not been adapted to changing realities and to the phenomenon of terrorism that is changing the face and characteristics of armed conflicts and those who participate in them (see in this regard the remarks of President A. Barak in Ajuri v. IDF Commander in West Bank [7], at pp. 381-382). In view of this, we should do our best to interpret the existing laws in a manner that is consistent with the new realities and the principles of international humanitarian law.

10.  Bearing all the above in mind, let us now turn to the interpretation of the statutory definition of "unlawful combatant" and of the conditions required for proving the existence of cause for internment under the Law. The presumption of constitutionality and the provisions of international law to which the parties referred will be our interpretive tools and they will assist us in interpreting the provisions of the Law and in evaluating the nature and scope of the power of internment it prescribes.

The definition of "unlawful combatant" and the scope of its application

11. S. 2 of the Law defines "unlawful combatant" as follows:

'Definitions

2.  In this law -

"unlawful combatant" - a person who has participated either directly or indirectly in hostile acts against the State of Israel or is a member of a force perpetrating hostile acts against the State of Israel, where the conditions prescribed in Article 4 of the Third Geneva Convention of 12 August 1949 relative to the Treatment of Prisoners of War with respect to granting prisoner of war status in international humanitarian law, do not apply to him;

This statutory definition of "unlawful combatant" relates to those who take part in hostile acts against the State of Israel or who are members of a force that perpetrates such acts, and who are not prisoners of war under international humanitarian law. In this regard two points should be made: first, from the language of the aforesaid s. 2 it is clear that it is not essential for someone to take part in hostile acts against the State of Israel; his membership in a "force perpetrating hostile acts" - i.e., a terrorist organization - may include that person within the definition of "unlawful combatant". We will discuss the significance of these two alternatives in the definition of "unlawful combatant" below (para. 21 .).

Secondly, as noted above, the purpose clause in the Law refers explicitly to the provisions of international humanitarian law. The definition of "unlawful combatant" in the aforesaid s. 2 also refers to international humanitarian law when it provides that the Law applies to a person who does not enjoy prisoner of war status under the Third Geneva Convention. In general, the rules of international humanitarian law were not intended to apply to the relationship between the state and its citizens (see, for example, the provisions of art. 4 of the Fourth Geneva Convention, according to which a "protected civilian" is someone who is not a citizen of the state that is holding him in circumstances of an international armed conflict). The explicit reference by the legislature to international humanitarian law, together with the stipulation in the wording of the Law that prisoner of war status does not apply, show that the Law was intended to apply only to foreign parties who belong to a terrorist organization that acts against the security of the state. We are not unaware that the draft law of 14 June 2000 contained an express provision stating that the Law would not apply to Israeli inhabitants (and also to inhabitants of the territories), except in certain circumstances that were set out therein (see s. 11 of the Internment of Enemy Forces Personnel Who Are Not Entitled to a Prisoner of War Status Bill, 5760-2000, Bills 5760, no. 2883, at p. 415). This provision was omitted from the final wording of the Law. Nevertheless, in view of the explicit reference in the Law to international humanitarian law and the laws concerning prisoners of war as stated above, the inevitable conclusion is that according to its wording and purpose, the Law was not intended to apply to local parties (citizens and residents of Israel) who endanger state security. For these other legal measures exist that are intended for a security purpose, which we shall address below.

It is therefore possible to sum up and say that an "unlawful combatant" under s. 2 of the Law is a foreign party who belongs to a terrorist organization that acts against the security of the State of Israel. This definition may include residents of a foreign country that maintains a state of hostilities against the State of Israel, who belong to a terrorist organization that acts against the security of the State and who satisfy the other conditions of the statutory definition of "unlawful combatant". This definition may also include inhabitants of the Gaza Strip, which today is no longer under belligerent occupation. In this regard it should be noted that since the end of Israeli military rule in the Gaza Strip in September 2005, the State of Israel has no permanent physical presence in the Gaza Strip, and it also has no real possibility of carrying out the duties of an occupying power under international law, including the main duty of maintaining public order and security. Any attempt to impose the authority of the State of Israel on the Gaza Strip is likely to involve complex and prolonged military operations. In such circumstances, where the State of Israel has no real ability to control what happens in the Gaza Strip in an effective manner, the Gaza Strip should not be regarded as a territory that is subject to belligerent occupation from the viewpoint of international law, even though the unique situation that prevails there imposes certain obligations on the State of Israel vis-?-vis the inhabitants of the Gaza Strip (for the position that the Gaza Strip is not now subject to a belligerent occupation, see Yuval Shany, "Faraway So Close: The Legal Status of Gaza after Israel's Disengagement," 8 Yearbook of International Humanitarian Law 2005 (2007) 359; see also the judgment of the International Court of Justice in Democratic Republic of the Congo v. Uganda, where the importance of a physical presence of military forces was emphasized for the existence of a state of occupation: Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda (ICJ, 19 December 2005), at para.173; with regard to the existence of certain obligations that the State of Israel has in the prevailing circumstances vis-?-vis the inhabitants of the Gaza Strip, see HCJ 9132/07 Elbassiouni v. Prime Minister [13]. In our case, in view of the fact that the Gaza Strip is no longer under the effective control of the State of Israel, we must conclude that the inhabitants of the Gaza Strip constitute foreign parties who may be subject to the Internment of Unlawful Combatants Law in view of the nature and purpose of this Law.

With regard to the inhabitants of the territory (Judaea and Samaria) that is under the effective control of the State of Israel, for the reasons that will be stated later (in para. 36 below), I tend to the opinion that insofar as necessary for security reasons, the administrative detention of these inhabitants should be carried out pursuant to the security legislation that applies in the territories and not by virtue of the Internment of Unlawful Combatants Law. However, the question of the application of the aforesaid Law to the inhabitants of the territories does not arise in the circumstances of the case before us and it may therefore be left undecided.

Conformity of the definition of "unlawful combatant" to a category recognized by international law

12. The appellants argued that the definition of "unlawful combatant" in s. 2 of the Law is contrary to the provisions of international humanitarian law, since international law does not recognize the existence of an independent and separate category of "unlawful combatants". According to their argument, there are only two categories in international law - "combatants" and "civilians", who are subject to the provisions and protections enshrined in the Third and Fourth Geneva Conventions respectively. In their view international law does not have an intermediate category that includes persons who are not protected by either of these conventions.

With regard to the appellants' aforesaid arguments we would point out that the question of the conformity of the term "unlawful combatant" to the categories recognized by international law has already been addressed in our case law in Public Committee against Torture in Israel v. Government of Israel [4], in which it was held that the term "unlawful combatants" does not constitute a separate category, but rather, a sub-category of "civilians" recognized by international law. This conclusion is based on the approach of customary international law, according to which the category of "civilians" includes everyone who is not a "combatant". We are therefore dealing with a negative definition. In the words of President A. Barak:

 'The approach of customary international law is that "civilians" are persons who are not "combatants" (see article 50(1) of the First Protocol, and Sabel, supra, at page 432). In the Blaskic case, the International Tribunal for War Crimes in Yugoslavia said that civilians are "persons who are not, or no longer, members of the armed forces" (Prosecutor v. Blaskic (2000), Case IT-95-14-T, at paragraph 180). This definition is of a "negative" character. It derives the concept of "civilians" from it being the opposite of "combatants". Thus it regards unlawful combatants, who as we have seen are not "combatants", as civilians' (ibid., at para. 26 of the opinion of President A. Barak).

In this context, two additional points should be made: first, the determination that "unlawful combatants" belong to the category of "civilians" in international law is consistent with the official interpretation of the Geneva Conventions, according to which in an armed conflict or a state of occupation, every person who finds himself in the hands of the opposing party is entitled to a certain status under international humanitarian law - the status of prisoner of war, which is governed by the Third Geneva Convention, or the status of protected civilian, which is governed by the Fourth Geneva Convention:

'There is no "intermediate status"; nobody in enemy hands can be outside the law' (O. Uhler and H. Coursier (eds.), Geneva Convention relative to the Protection of Civilian Persons in Time of War: Commentary (ICRC, Geneva, 1950), commentary to art. 4, at page 51).

(See also S. Borelli, 'Casting Light on the Legal Black Hole: International Law and Detentions Abroad in the "War on Terror",' 87(857) IRRC 39 (2005), at pp. 48-49).

Secondly, it should be emphasized that prima facie, the statutory definition of "unlawful combatants" under s. 2 of the Law applies to a broader group of people than the group of "unlawful combatants" discussed in Public Committee against Torture in Israel v. Government of Israel [4], in view of the difference in the measures under discussion: the judgment in Public Committee against Torture in Israel v. Government of Israel [4] considered the legality of the measure of a military attack intended to cause the death of an "unlawful combatant". According to international law, it is permitted to attack an "unlawful combatant" only during the period of time when he is taking a direct part in the hostilities. By contrast, the Internment of Unlawful Combatants Law deals with the measure of internment. For the purposes of internment under the Law, it is not necessary for the "unlawful combatant" to participate directly in the hostilities, nor is it essential that the internment take place during the period of time that he is participating in hostile acts; all that is required is that the conditions of the definition of "unlawful combatant" in s. 2 of the Law are proved. This statutory definition does not conflict with the provisions of international humanitarian law since, as we shall clarify clear below, the Fourth Geneva Convention also permits the detention of a protected "civilian"' who endangers the security of the detaining state. Thus we see that our reference to the judgment in Public Committee against Torture in Israel v. Government of Israel [4] was not intended to indicate that an identical issue was considered in that case. Its purpose was to support the finding that the term "unlawful combatants" in the Law under discussion does not create a separate category of treatment from the viewpoint of international humanitarian law; rather, it constitutes a sub-group of the category of "civilians".

13.   Further to our finding that "unlawful combatants" belong to the category of "civilians" from the viewpoint of international law, it should be noted that this court has held in the past that international humanitarian law does not grant "unlawful combatants" the same degree of protection to which innocent civilians are entitled, and that in this respect there is a difference from the viewpoint of the rules of international law between "civilians" who are not "unlawful combatants" and "civilians" who are "unlawful combatants". (With regard to the difference in the scope of the protection from a military attack upon "civilians" who are not "unlawful combatants" as opposed to "civilians" who are "unlawful combatants", see Public Committee against Torture in Israel v. Government of Israel [4], at paras. 23-26). As we shall explain below, in the present context the significance of this is that someone who is an "unlawful combatant" is subject to the Fourth Geneva Convention, but according to the provisions of the aforesaid Convention it is possible to apply various restrictions to them and inter alia to detain them when they represent a threat to the security of the state.

In concluding these remarks it should be noted that although there are disagreements on principle between the parties before us as to the scope of the international laws that apply to "unlawful combatants", including the application of the Fourth Geneva Convention and the scope of the rights of which they may be deprived for security reasons under art. 5 of the Convention, we are not required to settle most of these disagreements. This is due to the state's declaration that in its opinion the Law complies with the most stringent requirements of the Fourth Geneva Convention, and because of the assumption that the appellants enjoy all the rights that are enshrined in this Convention (see paras. 334 and 382 of the state's response).

14.  In summary, in view of the purpose clause of the Internment of Unlawful Combatants Law, according to which the Law was intended to regulate the status of "unlawful combatants" in a manner that is consistent with the rules of international humanitarian law, and bearing in mind the finding of this court in Public Committee against Torture in Israel v. Government of Israel [4] that "unlawful combatants" constitute a subcategory of "civilians" under international law, we are able to determine that, contrary to the appellants' claim, the Law does not create a new reference group from the viewpoint of international law; it merely determines special provisions for the detention of "civilians" (according to the meaning of this term in international humanitarian law) who are "unlawful combatants".

The nature of internment of "Unlawful Combatants" under the Law - administrative detention

15. Now that we have determined that the definition of "unlawful combatant" in the Law is not incompatible with division into the categories  of "civilians" as opposed to "combatants"' in international law and in the case law of this court, let us proceed to examine the provisions of the Law that regulate the internment of unlawful combatants. S. 3(a) of the law provides the following:

 

'Internment of Unlawful Combatant

3. (a) Where the Chief of Staff has reasonable cause to believe that a person being held by state authorities is an unlawful combatant and that his release will harm state security, he may issue an order under his hand, directing that such person be interned at a place to be determined (hereinafter: "internment order"); an internment order shall include the grounds for internment, without prejudicing state security requirements.'

S. 7 of the Law adds a probative presumption in this context, which provides as follows:

'Presumption

 7.  For the purposes of this Law, a person who is a member of a force perpetrating hostile acts against the State of Israel or who has participated in hostile acts of such a force, either directly or indirectly, shall be deemed to be a person whose release would harm state security as long as the hostile acts of such force against the State of Israel have not yet ceased, unless proved otherwise.'

The appellants argued before us that the internment provisions in the Law create, de facto, a third category of detention, which is neither criminal arrest nor administrative detention, and which has no recognition in Israeli law or international law. We cannot accept this argument. The mechanism provided in the Law is a mechanism of administrative detention in every respect, which is carried out in accordance with an order of the Chief of Staff, who is an officer of the highest security authority. As we shall explain below, we are dealing with an administrative detention whose purpose is to protect state security by removing from the cycle of hostilities anyone who is a member of a terrorist organization or who is participating in the organization's operations against the State of Israel, in view of the threat that he represents to the security of the state and the lives of its inhabitants.

16.  It should be noted that the actual authority provided in the Law for the administrative detention of a "civilian" who is an "unlawful combatant" due to the threat that he represents to the security of the state is not contrary to the provisions of international humanitarian law. Thus art. 27 of the Fourth Geneva Convention, which lists a variety of rights to which protected civilians are entitled, recognizes the possibility of a party to a dispute adopting "control and security measures" that are justified on security grounds. The wording of the aforesaid art. 27 is as follows:

'... the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.'

Regarding the types of control measures that are required for protecting state security, art. 41 of the Convention prohibits the adoption of control measures that are more severe than assigned residence or internment in accordance with the provisions of arts. 42-43 of the Convention. Art. 42 entrenches the rule that a "civilian" should not be interned unless this is "absolutely necessary" for the security of the detaining power. Art. 43 proceeds to obligate the detaining power to approve the detention by means of judicial or administrative review, and to hold periodic reviews of the continuing need for internment at least twice a year. Art. 78 of the Convention concerns the internment of protected civilians who are inhabitants of a territory that is held by an occupying power, and it states that it is possible to invoke various security measures against them for essential security reasons, including assigned residence and internment. Thus we see that the Fourth Geneva Convention allows the internment of protected "civilians" in administrative detention, when this is necessary for reasons concerning the essential security needs of the detaining power.

17.  In concluding these remarks we would point out that the appellants argued before us that the aforesaid provisions of the Fourth Geneva Convention are not applicable in their particular case. According to them, arts. 41-43 of the Convention concern the detention of protected civilians who are present in the territory of a party to a dispute, whereas the appellants were taken into detention when they were in the Gaza Strip in the period prior to the implementation of the disengagement plan, when the status of the Gaza Strip was that of territory under belligerent occupation.  They argue that art. 78 of the Fourth Geneva Convention - relating to administrative detention in occupied territory - is not applicable to their case either, in view of the circumstances that arose after the implementation of the disengagement plan and the departure of IDF forces from the Gaza Strip. In view of this, the appellants argued that no provision of international humanitarian law exists that allows them to be placed in administrative detention, and therefore they argued that their detention under the Internment of Unlawful Combatants Law is contrary to the provisions of international law.

Our reply to these arguments is that the detention provisions set out in the Fourth Geneva Convention were intended to apply and realize the basic principle contained in the last part of art. 27 of the Convention, which was cited above. As we have said, this article provides that the parties to a dispute may adopt security measures against protected civilians insofar as this is required due to the belligerence. The principle underlying all the detention provisions in the Fourth Geneva Convention is that "civilians" may be detained for security reasons to the extent necessitated by the threat that they represent. According to the aforesaid Convention, the power of detention for security reasons exists, whether we are concerned with the inhabitants of an occupied territory or with foreigners who were apprehended in the territory of one of the states involved in the dispute. In the appellants' case, although Israeli military rule in the Gaza Strip has ended, the hostilities between the Hezbollah organization and the State of Israel have not ceased; therefore, detention of the appellants within the territory of the State of Israel for security reasons is not inconsistent with the detention provisions in the Fourth Geneva Convention.

The cause of detention under the Law - the requirement of an individual threat to security and the effect of the interpretation of the statutory definition of "unlawful combatant"

18.  One of the first principles of our legal system is that administrative detention is conditional upon the existence of a cause of detention that derives from the individual threat posed by the detainee to the security of the state. This was discussed by President Barak when he said:

'[For cause of detention to exist] the circumstances of the detention must be such that they arouse, with respect to [the prisoner] - to him personally and not to someone else - concern that threatens security, whether because he was apprehended in the combat area when he was actually fighting or carrying out acts of terrorism, or because there is a concern that he is involved in fighting or terrorism' (Marab v. IDF Commander in Judaea and Samaria [8], at p. 367).

The requirement of an individual threat for the purpose of placing a person in administrative detention is an essential part of the protection of the constitutional right to dignity and personal liberty. This court has held in the past that administrative detention is basically a preventative measure; administrative detention was not intended to punish a person for acts that have already been committed or to deter others from committing them; its purpose is to prevent the tangible risk presented by the acts of the prisoner to the security of the state. It is this risk that justifies the use of the unusual measure of administrative detention that violates human liberty (see and cf. Ajuri v. IDF Commander in West Bank [7], at pp. 370-372, and the references cited there).

19.  It will be noted that a personal threat to state security posed by the detainee is also a requirement under the principles of international humanitarian law. Thus, for example, in his interpretation of arts. 42 and 78 of the Fourth Geneva Convention, Pictet emphasizes that the state should resort to the measure of detention only when it has serious and legitimate reasons to believe that the person concerned endangers its security. In his interpretation Pictet discusses membership in organizations whose goal is to harm the security of the state as a ground for deeming a person to be a threat, but he emphasizes the meta-principle that the threat is determined in accordance with the individual activity of that person. In Pictet's words:

'To justify recourse to such measures, the state must have good reason to think that the person concerned, by his activities, knowledge or qualifications, represents a real threat to its present or future security' (J.S. Pictet, Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1958), at pp. 258-259).

20. No one here disputes that the provisions of the Internment of Unlawful Combatants Law should be interpreted in accordance with the aforesaid principles, whereby administrative detention is conditional upon proving the existence of cause that establishes an individual threat. Indeed, an examination of the provisions of the Law in accordance with the aforesaid principles reveals that the Law does not allow a person to be detained arbitrarily, and that the authority to detain by virtue of the Law is conditional upon the existence of a cause of detention that is based on the individual threat represented by the prisoner: first, the definition of "unlawful combatant" in s. 2 of the Law requires that it be proven that the prisoner himself took part in or belonged to a force that is carrying out hostilities against the State of Israel, the significance of which we shall address below. Secondly, s. 3(a) of the Law expressly provides that the cause of detention under the Law arises only with regard to someone for whom there is reasonable basis to believe that "his release will harm state security." S. 5(c) of the Law goes on to provide that the District Court will set aside a detention order that was issued pursuant to the Law only when the release of the prisoner "will not harm state security" (or when there are special reasons that justify the release). To this we should add that according to the purpose of the Law, administrative detention is intended to prevent the "unlawful combatant" from returning to the cycle of hostilities, indicating that he was originally a part of that cycle.

The dispute between the parties before us in this context concerns the level of the individual threat that the state must prove for the purpose of administrative detention under the Law. This dispute arises due to the combination of two main provisions of the Law: one is the provision in s. 2 of the Law, a simple reading of which states that an "unlawful combatant" is not only someone who takes a direct or indirect part in hostile acts against the State of Israel, but also a person who is a "member of a force perpetrating hostile acts." The other is the probative presumption in s. 7 of the Law, whereby a person who is a member of a force that perpetrates hostile acts against the State of Israel shall be regarded as someone whose release will harm the security of the state unless the contrary is proved. On the basis of a combination of these two provisions of the Law, the state argued that it is sufficient to prove that a person is a member of a terrorist organization in order to prove his individual danger to the security of the state in such a manner that provides cause for detention under the Law. By contrast, the appellants' approach was that relying upon abstract "membership" in an organization that perpetrates hostile acts against the State of Israel as a basis for administrative detention under the Law renders meaningless the requirement of proving an individual threat, contrary to constitutional principles and international humanitarian law.

21. Resolution of the aforesaid dispute is largely affected by the interpretation of the definition of "unlawful combatant" in s. 2 of the Law. As we have said, the statutory definition of "unlawful combatant" contains two alternatives: the first, "a person who has participated either directly or indirectly in hostile acts against the State of Israel", and the second, a person who is "a member of a force perpetrating hostile acts against the State of Israel," when the person concerned does not satisfy the conditions granting prisoner of war status under international humanitarian law. These two alternatives should be interpreted with reference to the security purpose of the Law and in accordance with the constitutional principles and international humanitarian law that we discussed above, which require proof of an individual threat as grounds for administrative detention.

With respect to the interpretation of the first alternative concerning "a person who has participated either directly or indirectly in hostile acts against the State of Israel " - according to the legislative purpose and the principles that we have discussed, the obvious conclusion is that in order to intern a person it is not sufficient that he made a remote, negligible or marginal contribution to the hostilities against the State of Israel. In order to prove that a person is an "unlawful combatant", the state must prove that he contributed to the perpetration of hostile acts against the state, either directly or indirectly, in a manner that is likely to indicate his personal dangerousness. Naturally it is not possible to define such a contribution precisely and exhaustively, and the matter must be examined according to the circumstances of each case on its merits.

With respect to the second alternative  - a person who is "a member of a force carrying out hostilities against the State of Israel" - here too an interpretation that is consistent with the purpose of the Law and the constitutional principles and international humanitarian law discussed above is required: on the one hand it is insufficient to simply show some kind of tenuous connection with a terrorist organization in order to include the person within the cycle of hostilities in the broad meaning of this concept. On the other hand, in order to establish cause for the internment of a person who is a member of an active terrorist organization whose self-declared goal is to fight incessantly against the State of Israel, it is not necessary for that person to take a direct or indirect part in the hostilities themselves, and it is possible that his connection and contribution to the organization will be expressed in other ways that suffice to include him in the cycle of hostilities in its broad sense, such that his detention will be justified under the Law.

Thus we see that for the purpose of internment under the Law, the state must furnish administrative proof that the prisoner is an "unlawful combatant" with the meaning that we discussed, i.e. that the prisoner took a direct or indirect part that involved a contribution to the fighting  - a part that was neither negligible nor marginal in hostile acts against the State of Israel - or that the prisoner belonged to an organization that perpetrates hostile acts, in which case we should consider the prisoner's connection and the nature of his contribution to the cycle of hostilities of the organization in the broad sense of this concept.

It should be noted that proving the conditions of the definition of an "unlawful combatant" in the aforesaid sense naturally includes proof of an individual threat that derives from the type of involvement in the organization. It should also be noted that only after the state has proved that the prisoner fulfils the conditions of the statutory definition of "unlawful combatant" can it have recourse to the probative presumption set out in s. 7 of the Law, according to which the release of the prisoner will harm state security as long as the contrary has not been proved. It is therefore clear that s. 7 of the Law does not negate the obligation of the state to prove the threat represented by the prisoner, which derives from the type of involvement in the relevant organization, as required in order to prove him to be an "unlawful combatant" under s. 2 of the Law. In view of this, the inevitable conclusion is that the argument that the Law does not include a requirement of an individual threat goes too far and should be rejected.

Proving someone to be an "unlawful combatant" under the Law - the need for clear and convincing administrative evidence

22.  Above, we discussed the interpretation of the definition of "unlawful combatant". According to the aforesaid interpretation, the state is required to prove that the prisoner took a substantial, direct or indirect part in hostile acts against the State of Israel, or that he belonged to an organization that perpetrates hostile acts:  all this, taking into consideration his connection and the extent of his contribution to the organization's cycle of hostilities. In these circumstances internment of a person may be necessary in order to remove him from the cycle of hostilities that prejudices the security of the citizens and residents of the State of Israel. The question that arises here is this: what evidence is required in order to convince the court that the prisoner satisfies the conditions of the definition of an "unlawful combatant" with the aforesaid meaning?

This court has held in the past that since administrative detention is an unusual and extreme measure, and in view of its violation of the constitutional right to personal liberty, clear and convincing evidence is required in order to prove a security threat that establishes a cause for administrative detention (see Ajuri v. IDF Commander in West Bank [7], at p. 372, where this was the ruling with regard to the measure of assigned residence; also cf. per Justice A. Procaccia in ADA 8607/04 Fahima v. State of Israel [14], at p. 264; HCJ 554/81 Beransa v. Central Commander [15]). It would appear that the provisions of the Internment of Unlawful Combatants Law should be interpreted similarly. Bearing in mind the importance of the right to personal liberty and in view of the security purpose of the said Law, the provisions of ss. 2 and 3 of the Law should be interpreted as obligating the state to prove, with clear and convincing administrative evidence, that even if the prisoner did not take a substantial, direct or indirect part in hostile acts against the State of Israel, he belonged to a terrorist organization and made a significant contribution to the cycle of hostilities in its broad sense, such that his administrative detention is justified in order to prevent his return to the aforesaid cycle of hostilities.

The significance of the requirement that there be clear and convincing evidence is that importance should be attached to the quantity and quality of the evidence against the prisoner and the degree to which the relevant intelligence information against him is current; this is necessary both to prove that the prisoner is an "unlawful combatant" under s. 2 of the Law and also for the purpose of the judicial review of the need to continue the detention, to which we shall return below. Indeed, the purpose of administrative detention is to prevent anticipated future threats to the security of the state; naturally we can learn of these threats from tangible evidence concerning the prisoner's acts in the past (see per President M. Shamgar in Beransa v. Central Commander [15], at pp. 249-250; HCJ 11026/05 A v. IDF Commander [16], at para. 5). Nevertheless, for the purposes of long-term internment under the Internment of Unlawful Combatants Law, satisfactory administrative evidence is required, and a single piece of evidence about an isolated act carried out in the distant past is insufficient.

23. It follows that for the purposes of internment under the Internment of Unlawful Combatants Law, the state is required to provide clear and convincing evidence that even if the prisoner did not take a substantial direct or indirect part in hostile acts against the State of Israel, he belonged to a terrorist organization and contributed to the cycle of hostilities in its broad sense. It should be noted that this requirement is not always easy to prove, for to prove that someone is a member of a terrorist organization is not like proving that someone is a member of a regular army, due to the manner in which terrorist organizations work and how people join their ranks. In Public Committee against Torture in Israel v. Government of Israel [4], the court held that unlike lawful combatants, unlawful combatants do not as a rule bear any clear and unambiguous signs that they belong to a terrorist organization (see ibid. [4], at para. 24). Therefore, the task of proving that a person belongs to an organization as aforesaid is not always an easy one. Nevertheless, the state is required to furnish sufficient administrative evidence to prove the nature of the prisoner's connection to the terrorist organization, and the degree or nature of his contribution to the broad cycle of combat or hostile acts carried out by the organization.

It should also be noted that in its pleadings before us, the state contended that the power of internment prescribed in the Internment of Unlawful Combatants Law was intended to apply to members of terrorist organizations in a situation of ongoing belligerence in territory that is not subject to the full control of the State of Israel, where in the course of the hostilities a relatively large number of unlawful combatants may fall into the hands of the security forces and it is necessary to prevent them returning to the cycle of hostilities against Israel. The special circumstances that exist in situations of this kind require a different course of action from that which is possible within the territory of the state or in an area subject to belligerent occupation. In any case, it must be assumed that the said reality may pose additional difficulties in assembling evidence as to whether those persons detained by the state on the battle-field belong to a terrorist organization and how great a threat they represent.

The probative presumptions in ss. 7 and 8 of the Law

24. As we have said, s. 7 of the Law establishes a presumption whereby a person who satisfies the conditions of the definition of "unlawful combatant" shall be regarded as someone whose release will harm the security of the state as long as the hostile acts against the State of Israel have not ceased. This is a rebuttable presumption, and the burden of rebutting it rests on the prisoner. We will emphasize what we said above, that the presumption in the said s. 7 is likely to be relevant only after the state has proved that the prisoner satisfies the conditions of the definition of "unlawful combatant". In such circumstances it is presumed that the release of the prisoner will harm state security as required by s. 3(a) of the Law.

As noted above, one of the appellants' main claims in this court was that the aforesaid presumption obviates the need to prove an individual threat from the prisoner, and that this is inconsistent with constitutional principles and international humanitarian law. The respondent countered this argument but went on to declare before us that as a rule, the state strives to present a broad and detailed evidentiary basis with regard to the threat presented by prisoners, and it has done so to date in relation to all prisoners under the Law, including in the appellants' case. The meaning of this assertion is that in practice, the state refrains from relying on the probative presumption in s. 7 of the Law and it proves the individual threat presented by prisoners on an individual basis, without resorting to the said presumption. It should be noted that this practice of the state is consistent with our finding that proving fulfillment of the conditions of the definition of "unlawful combatant" in s. 2 of the Law involves proving the individual threat that arises from the type of involvement in an organization as explained above.

In any case, since the state has refrained until now from invoking the presumption in s. 7 of the Law, the questions of the extent to which the said presumption reduces the requirement of proving the individual threat for the purpose of internment under the Law, and whether this is an excessive violation of the constitutional right to liberty and of the principles of international humanitarian law, do not arise. We can therefore leave these questions undecided, for as long as the state produces prima facie evidence of the individual threat presented by the prisoner and does not rely on the presumption under discussion, the question of the effect of the presumption on proving an individual threat remains theoretical. It will be noted that should the state choose to invoke the presumption in s. 7 of the Law in the future rather than proving the threat to the required degree, it will be possible to bring the aforesaid questions before the court, since it will be necessary to resolve them concretely rather than theoretically (see CrimA 3660/03 Abeid v. State of Israel [17]; HCJ 1853/02 Navi v. Minister of Energy and National Infrastructures [18]; HCJ 6055/95 Tzemach v. Minister of Defence [19], at p. 250 {641}; HCJ 4827/05 Man, Nature and Law - Israel Environmental Protection Society v. Minister of the Interior [20], at para. 10; CA 7175/98 National Insurance Institute v. Bar Finance Ltd (in liquidation) [21]).

25. Regarding the probative presumption in s. 8 of the Law, this section states as follows:

'Determination regarding hostile acts

8. A determination of the Minister of Defence, by a certificate under his hand, that a particular force is perpetrating hostile acts against the State of Israel or that hostile acts of such force against the State of Israel have ceased or have not yet ceased, shall serve as proof in any legal proceedings, unless proved otherwise.

The appellants argued before us that the said probative presumption transfers the burden of proof to the prisoner in respect of a matter which he will never be able to refute, since it is subject to the discretion of the Minister of Defence. The state countered that in all the proceedings pursuant to the Law it has refrained from relying solely on the determination of the Minister of Defence, and it has presented the court and counsel for the prisoners with an updated and detailed opinion concerning the relevant organization to which the prisoner belongs. This was done in the case of the appellants too, who allegedly belong to the Hezbollah organization. In view of this, we are not required to decide on the fundamental questions raised by the appellants regarding the said s. 8.  In any case, it should be stated that in the situation prevailing in our region, in which the organizations that operate against the security of the State of Israel are well known to the military and security services, it should not be assumed that it is difficult to prove the existence and nature of the activity of hostile forces by means of a specific and updated opinion, in order to provide support for the determination of the Minister of Defence, as stated in s. 8 of the Law.

The Constitutional Examination

26.  Up to this point we have dealt with the interpretation of the statutory definition of "unlawful combatant" and the conditions required for proving the existence of a cause for internment under the Law. This interpretation takes into account the language and purpose of the Internment of Unlawful Combatants Law, and it is compatible with the presumption of constitutionality and with the principles of international humanitarian law to which the purpose clause of the Law expressly refers.

Now that we have considered the scope of the Law's application and the nature of the power of internment by virtue thereof, we will proceed to the arguments of the parties concerning the constitutionality of the arrangements prescribed in its framework. These arguments were raised in the District Court and in this court in the course of the hearing on the appellants' internment, in the framework of an indirect attack on the said Law.

Violation of the constitutional right to personal liberty

27.  S. 5 of Basic Law: Human Dignity and Liberty provides as follows:

'Personal liberty

5.  There shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise.

There is no dispute between the parties before us that the Internment of Unlawful Combatants Law violates the constitutional right to personal liberty entrenched in the aforesaid s. 5. This is a significant and serious violation, in that the Law allows the use of the extreme measure of administrative detention, which involves depriving a person of his personal liberty. It should be clarified that the Internment of Unlawful Combatants Law was admittedly intended to apply to a foreign entity belonging to a terrorist organization that operates against the state security (see para. 11 above). In Israel, however, the internment of unlawful combatants is carried out by the government authorities, who are bound in every case to respect the rights anchored in the Basic Law (see ss. 1 and 11 of the Basic Law). Accordingly, the violation inherent in the arrangements of the Internment of Unlawful Combatants Law should be examined in keeping with the criteria in the Basic Law.

Examining the violation of the constitutional right from the perspective of the limitation clause

28.  No one disputes that the right to personal liberty is a constitutional right with a central role in our legal system, lying at the heart of the values of the State of Israel as a Jewish and democratic state (see Marab v. IDF Commander in Judaea and Samaria [8], at para. 20). It has been held in our case law that "personal liberty is a constitutional right of the first degree, and from a practical viewpoint it is also a condition for realizing other basic rights" (Tzemach v. Minister of Defence [16], at p. 251; see also HCJ 5319/97 Kogen v. Chief Military Prosecutor [22], at p. 81 {513}; CrimA 4596/05 Rosenstein v. State of Israel [23], at para. 53; CrimA 4424/98 Silgado v. State of Israel [24], at pp. 539-540). Nevertheless, like all protected human rights the right to personal liberty is not absolute, and a violation of the right is sometimes necessary in order to protect essential public interests. The balancing formula in this context appears in the limitation clause in s. 8 of the Basic Law, which states:

'Violation of Rights

8. There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required, or according to a law as stated by virtue of explicit authorization therein. '

The question confronting us is whether the violation of the right to personal liberty engendered by the Internment of Unlawful Combatants Law complies with the conditions of the limitation clause. The arguments of the parties before us focused on the requirements of proper purpose and proportionality, and these will be the focus of our deliberations as well.

29. At the outset, and before we examine the provisions of the Law from the perspective of the limitation clause, we should mention that the court will not hasten to intervene and set aside a statutory provision enacted by the legislature. The court is bound to uphold the law as a manifestation of the will of the people (HCJ 1661/05 Gaza Coast Regional Council v. Knesset [25], at pp. 552-553; HCJ 4769/95 Menahem v. Minister of Transport [26], at pp. 263-264; HCJ 3434/96 Hoffnung v. Knesset Speaker [27], at pp. 66-67). Thus the principle of the separation of powers finds expression: the legislative authority determines the measures that should be adopted in order to achieve public goals, whereas the judiciary examines whether these measures violate basic rights in contravention of the conditions set for this purpose in the Basic Law. It is the legislature that determines national policy and formulates it in statute, whereas the court scrutinizes the constitutionality of the legislation to reveal the extent to which it violates constitutional human rights (see per President A. Barak in Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of the Interior [10], at para. 78). It has therefore been held in the case law of this court that when examining the legislation of the Knesset from the perspective of the limitation clause, the court will act "with judicial restraint, caution and moderation" (Menahem v. Minister of Transport [26], at p. 263). The court will not refrain from constitutional scrutiny of legislation, but it will act with caution and exercise its constitutional scrutiny in order to protect human rights within the constraints of the limitation clause, while refraining from reformulating the policy that the legislature saw fit to adopt. Thus the delicate balance between majority rule and the principle of the separation of powers on the one hand, and the protection of the basic values of the legal system and human rights on the other, will be preserved.

The requirement of a proper purpose

30. According to the limitation clause, a statute that violates a constitutional right must have a proper purpose. It has been held in our case law that a legislative purpose is proper if it is designed to protect human rights, including by determining a reasonable and fair balance between the rights of individuals with conflicting interests, or if it serves an essential public purpose, an urgent social need or an important social concern whose purpose is to provide an infrastructure for coexistence and a social framework that seeks to protect and promote human rights (see ibid. [26], at p. 264; HCJ 6893/05 Levy v. Government of Israel [28], at pp. 889-890; HCJ 5016/96 Horev v. Minister of Transport [29], at pp. 52-53, {206}). It has also been held that not every purpose justifies a violation of constitutional basic rights, and that the essence of the violated right and the magnitude of the violation are likely to have ramifications for the purpose that is required to justify the violation.

In our remarks above we explained that the Internment of Unlawful Combatants Law, according to its wording and its legislative history, was intended to prevent persons who threaten the security of the state due to their activity or their membership in terrorist organizations that carry out hostile acts against the State of Israel from returning to the cycle of hostilities (see para. 6 above). This legislative purpose is a proper one. Protecting state security is an urgent and even essential public need in the harsh reality of unremitting, murderous terrorism that harms innocent people indiscriminately. It is difficult to exaggerate the security importance of preventing members of terrorist organizations from returning to the cycle of hostilities against the State of Israel in a period of relentless terrorist activity that threatens the lives of the citizens and residents of the State of Israel. In view of this, the purpose of the Law under discussion may well justify a significant and even serious violation of human rights, including the right to personal liberty. Thus was discussed by President A. Barak when he said that -

'There is no alternative - in a freedom and security seeking democracy - to striking a balance between liberty and dignity on the one hand and security on the other. Human rights should not become a tool for depriving the public and the state of security. A balance - a delicate and difficult balance - is required between the liberty and dignity of the individual and state and public security' (A v. Minister of Defence [1], at p.741).

 (See also Ajuri v. IDF Commander in West Bank [7], at p. 383; per Justice D. Dorner in HCJ 5627/02 Saif v. Government Press Office [30],  at pp. 76-77, {para.6 at pp. 197-198}; EA 2/84 Neiman v. Chairman of Central Elections Committee for Tenth Knesset [31], at p. 310 {160}).

The purpose of the Internment of Unlawful Combatants Law is therefore a proper one. But this is not enough. Within the framework of constitutional scrutiny, we are required to proceed to examine whether the violation of the right to personal liberty does not exceed what is necessary for realizing the purpose of the Law. We shall now examine this question.

The requirement that the measure violating a human right is not excessive

31. The main issue that arises with respect to the constitutionality of the Law concerns the proportionality of the arrangements it prescribes. As a rule, it is customary to identify three subtests that constitute fundamental criteria for determining the proportionality of a statutory act that violates a constitutional human right: the first is the rational connection test, whereby the legislative measure violating the constitutional right and the purpose that the Law is intended to realize must be compatible; the second is the least harmful measure test, which requires that the legislation violate the constitutional right to the smallest degree possible in order to achieve the purpose of the Law; and the third is the test of proportionality in the narrow sense, according to which the violation of the constitutional right must be commensurate with the social benefit it bestows (see Menahem v. Minister of Transport [26], at p. 279; Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of the Interior [10], at paras. 65-75; Beit Sourik Village Council v. Government of Israel [6], at pp. 839-840).

It has been held in the case law of this court that the test of proportionality, with its three subtests, is not a precise test since by its very nature it involves assessment and evaluation. The subtests sometimes overlap and each of them allows the legislature a margin of discretion. There may be circumstances in which the choice of an alternative measure that violates the constitutional right slightly less results in a significant reduction in the realization of the purpose or the benefit derived from it; it would not be right therefore to obligate the legislature to adopt the aforesaid measure. Consequently this court has accorded recognition to "constitutional room for maneuver" which is also called the "zone of proportionality". The bounds of the constitutional room for maneuver are determined by the court in each case on its merits and according to its circumstances, bearing in mind the nature of the right that is being violated and the extent of the violation as opposed to the nature and substance of the competing rights or interests. This court will not substitute its own discretion for the criteria chosen by the legislature and will refrain from intervention as long as the measure chosen by the legislature falls within the zone of proportionality. The court will only intervene when the chosen measure significantly departs from the bounds of the constitutional room for maneuver and is clearly disproportionate (see CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [32], at p. 438; HCJ 450/97 Tenufa Manpower and Maintenance Services Ltd. v. Minister of Labour and Social Affairs [33]; AAA 4436/02 Tishim Kadurim Restaurant, Members' Club v. Haifa Municipality [34], at p. 815; Gaza Coast Regional Council v. Knesset [25], at pp. 550-551).

In the circumstances of the case before us, the violation of the constitutional right to personal liberty is significant and even severe in its extent. Nevertheless, as we said above, the legislative purpose of removing "unlawful combatants" from the cycle of hostilities in order to protect state security is essential in view of the reality of murderous terrorism that threatens the lives of the residents and citizens of the State of Israel. In these circumstances, I think that the existence of relatively wide room for legislative maneuver should be recognized, to allow the selection of the suitable measure for realizing the purpose of the Law.

The First Subtest: A Rational Connection Between the Measure and the Purpose

32.  The measure chosen by the legislature in order to realize the purpose of the Internment of Unlawful Combatants Law is administrative detention. As we explained in para. 21 above, for the purpose of internment under the Law the state must provide clear and convincing proof that the prisoner is an "unlawful combatant" within the meaning that we discussed. The state is therefore required to prove the personal threat presented by the prisoner, deriving from his particular form of involvement in the organization. Administrative detention constitutes a suitable means of averting the security threat presented by the prisoner, in that it prevents the "unlawful combatant" from returning to the cycle of hostilities against the State of Israel and thereby serves the purpose of the Law. Therefore the first subtest of proportionality - the rational connection test - is satisfied.

The main question concerning the proportionality of the Law under discussion concerns the second subtest, i.e. the question of whether there exist alternative measures that involve a lesser violation of the constitutional right. In examining this question, we should first consider the appellants' argument that there are more proportionate measures for realizing the purpose of the Internment of Unlawful Combatants Law. Next we should consider the specific arrangements prescribed in the Law and examine whether they exceed the zone of proportionality. Finally we should examine the Law in its entirety and examine whether the combination of arrangements that were prescribed in the Law fulfils the test of proportionality in the narrow sense, i.e. whether the violation of the right to personal liberty is reasonably commensurate with the public benefit that arises from it in realizing the legislative purpose.

The argument that there are alternative measures to detention under the Law

33.  The appellants' main argument concerning proportionality was that alternative measures to administrative detention exist by virtue of the Law, involving a lesser violation of the right to liberty. In this context, the appellants raised two main arguments: first, it was argued that for the purpose of realizing the legislative purpose it is not necessary to employ the measure of administrative detention, and the appellants ought to be recognized as prisoners of war; alternatively, recourse should be had to the measure of trying the appellants on criminal charges. Secondly, it was argued that even if administrative detention is necessary in the appellants' case, this should be carried out under the Emergency Powers (Detentions) Law, 5739-1979, for according to their argument, the violation that it involves is more proportionate than that of the Internment of Unlawful Combatants Law.

The first argument - that the appellants should be declared prisoners of war - must be rejected. In HCJ 2967/00 Arad v. Knesset [35], which considered the case of Lebanese prisoners, a similar argument to the one raised in the present appellants' case was rejected:

'We agree with the position of Mr Nitzan that the Lebanese prisoners should not be regarded as prisoners of war. It is sufficient that they do not satisfy the provisions of art. 4(2)(d) of the Third Geneva Convention, which provides that one of the conditions that must be satisfied in order to comply with the definition of "prisoners of war" is "that of conducting their operations in accordance with the laws and customs of war." The organizations to which the Lebanese prisoners belonged are terrorist organizations, which operate contrary to the laws and customs of war. Thus, for example, these organizations deliberately attack civilians and shoot from the midst of the civilian population, which they use as a shield. All of these are operations that are contrary to international law. Indeed, Israel's consistent position over the years was not to regard the various organizations such as Hezbollah as organizations to which the Third Geneva Convention applies. We have found no reason to intervene in this position' (ibid. [35], at p. 191).

 (See also CrimApp 8780/06 Sarur v. State of Israel [36]; HCJ 403/81 Jabar v. Military Commander [37]; and also HCJ 102/82 Tzemel v. Minister of Defence [38], at pp. 370-371).

Similar to what was said in Arad v. Knesset [35], in the circumstances of the case before us, too, the appellants should not be accorded prisoner of war status, since they do not satisfy the conditions of art. 4 of the Third Geneva Convention, and primarily, the condition concerning the observance of the laws of war.

The appellants' argument that a more proportionate measure would be to try the prisoners on criminal charges should also be rejected, in view of the fact that trying a person on criminal charges is different in essence and purpose from the measure of administrative detention. Putting a person on trial is intended to punish him for acts committed in the past, and it is dependent upon the existence of evidence that can be brought before a court in order to prove guilt beyond a reasonable doubt. Administrative detention, on the other hand, was not intended to punish but to prevent activity that is prohibited by law and endangers the security of the state. The quality of evidence that is required for administrative detention is different from that required for a criminal trial. Moreover, as a rule recourse to the extreme measure of administrative detention is justified in circumstances where other measures, including the conduct of a criminal trial, are impossible, due to the absence of sufficient admissible evidence or the impossibility of revealing privileged sources, or when a criminal trial does not provide a satisfactory solution to averting the threat posed to the security of the state in circumstances in which, after serving his sentence, the person is likely to revert to being a security risk (see, inter alia, ADA 4794/05 Ufan v. Minister of Defence [39]; ADA 7/94 Ben-Yosef v. State of Israel [40]; ADA 8788/03 Federman v. Minister of Defence [41], at pp. 185-189; Fahima v. State of Israel [14], at pp. 263-264). In view of all the above, it cannot be said that a criminal trial constitutes an alternative measure for realizing the purpose of the Internment of Unlawful Combatants Law.

34.  As we have said, the appellants' alternative claim before us was that even if it is necessary to place them in administrative detention, this should be done pursuant to the Emergency Powers (Detentions) Law. According to this argument, the Emergency Powers (Detentions) Law violates the right to personal liberty to a lesser degree than the provisions of the Internment of Unlawful Combatants Law. Thus, for example, it is argued that the Emergency Powers (Detentions) Law requires an individual threat as a cause for detention, without introducing presumptions that transfer the burden of proof to the prisoner, as provided in the Internment of Unlawful Combatants Law. Moreover, the Emergency Powers (Detentions) Law requires a judicial review to be conducted within forty-eight hours of the time of detention, and a periodic review every three months, whereas the Internment of Unlawful Combatants Law allows a prisoner to be brought before a judge as much as fourteen days after the time he is detained, and it requires a periodic review only once every half year; under the Emergency Powers (Detentions) Law,  the power of detention is conditional upon the existence of a state of emergency in the State of Israel, whereas internment under the Internment of Unlawful Combatants Law does not set such a condition and it is even unlimited in time, apart from the stipulation that the internment will end by the time that the hostilities against the State of Israel have ceased. To this it should be added that detention under the Emergency Powers (Detentions) Law is effected by an order of the Minister of Defence, whereas internment under the Internment of Unlawful Combatants is effected by an order of the Chief of Staff, who is authorised to delegate his authority to an officer with the rank of major-general. Taking into consideration all the above, the appellants' argument before us is that detention under the Emergency Powers (Detentions) Law constitutes a more proportionate alternative than administrative detention under the Internment of Unlawful Combatants Law.

35.  Prima facie the appellants are correct in their argument that in certain respects the arrangements prescribed in the Emergency Powers (Detentions) Law violate the right to personal liberty to a lesser degree than the Internment of Unlawful Combatants Law. However, we accept the state's argument in this context that the Internment of Unlawful Combatants Law is intended for a different purpose than that of the Emergency Powers (Detentions) Law. In view of the different purposes, the two laws contain different arrangements, such that the Emergency Powers (Detentions) Law does not constitute an alternative measure for achieving the purpose of the Law under discussion in this case. Let us clarify our position.

The Emergency Powers (Detentions) Law applies in a time of emergency and in general, its purpose is to prevent threats to state security arising from internal entities (i.e., citizens and residents of the state). Accordingly, the Law prescribes the power of administrative detention that is usually invoked with regard to isolated individuals who threaten state security and whose detention is intended to last for relatively short periods of time, apart from exceptional cases. On the other hand, as we clarified in para. 11 above, the Internment of Unlawful Combatants Law is intended to apply to foreign entities who operate within the framework of terrorist organizations against the security of the state. The Law was intended to apply at a time of organized and persistent hostile acts against Israel on the part of terrorist organizations. The purpose of the Law is to prevent persons who belong to these organizations or who take part in hostile acts under their banner from returning to the cycle of hostilities, as long as the hostilities against the State of Israel continue. In order to achieve the aforesaid purpose, the Internment of Unlawful Combatants Law contains arrangements that are different from those in the Emergency Powers (Detentions) Law (we will discuss the question of the proportionality of these arrangements below). Moreover, according to the state, the power of detention prescribed in the Internment of Unlawful Combatants Law was intended to apply to members of terrorist organizations in a persistent state of war in a territory that is not a part of Israel, where a relatively large number of enemy combatants is likely to fall into the hands of the military forces during the fighting. The argument is that these special circumstances justify recourse to measures that are different from those usually employed.

Thus we see that even though the Emergency Powers (Detentions) Law and the Internment of Unlawful Combatants Law prescribe a power of administrative detention whose purpose is to prevent a threat to state security, the specific purposes of the aforesaid laws are different and therefore the one cannot constitute an alternative measure for achieving the purpose of the other. In the words of the trial court: "We are dealing with a horizontal plane on which there are two acts of legislation, one next to the other. Each of the two was intended for a different purpose and therefore, in circumstances such as our case, they are not alternatives to one another" (p. 53 of the decision of the District Court of 19 July 2006). It should be clarified that in appropriate circumstances, the Emergency Powers (Detentions) Law could well be used to detain foreigners who are not residents or citizens of the State of Israel. Despite this, the premise is that the specific purposes of the Emergency Powers (Detentions) Law and the Internment of Unlawful Combatants Law are different, and therefore it cannot be determined in a sweeping manner that detention under the Emergency Powers (Detentions) Law constitutes a more appropriate and proportionate alternative to detention under the Internment of Unlawful Combatants Law.

36.  In concluding these remarks it will be mentioned that the appellants, who are inhabitants of the Gaza Strip, were first detained in the years 2002-2003, when the Gaza Strip was subject to belligerent occupation. At that time, the administrative detention of the appellants was carried out under the security legislation that was in force in the Gaza Strip. A change occurred in September 2005, when Israeli military rule in the Gaza Strip ended and the territory ceased to be subject to belligerent occupation (see para. 11 above). One of the ancillary consequences of the end of the Israeli military rule in the Gaza Strip was the repeal of the security legislation that was in force there. Consequently, the Chief of Staff issued detention orders for the appellants under the Internment of Unlawful Combatants Law.

In view of the nullification of the security legislation in the Gaza Strip, no question arises in relation to inhabitants of that region as to whether administrative detention by virtue of security legislation may constitute a suitable and more proportionate measure than internment under the Internment of Unlawful Combatants Law. Nonetheless, I think it noteworthy that the aforesaid question may arise with regard to inhabitants of the territories that are under the belligerent occupation of the State of Israel (Judaea and Samaria). As emerges from the abovesaid in para. 11, prima facie I tend to the opinion that both under the international humanitarian law that governs the matter (art. 78 of the Fourth Geneva Convention) and according to the test of proportionality, administrative detention of inhabitants of Judaea and Samaria should be carried out by virtue of the current security legislation that is in force in the territories, and not by virtue of the Internment of Unlawful Combatants Law in Israel. This issue does not, however, arise in the circumstances of the case before us and therefore I think it right to leave it for future consideration.

Proportionality of the specific arrangements prescribed in the Law

37.  In view of all of the reasons elucidated above, we have reached the conclusion that the measures identified by the appellants in their pleadings cannot constitute alternative measures to administrative detention by virtue of the Law under discussion. The appellants further argued that the specific arrangements prescribed in the Internment of Unlawful Combatants Law violate the right to personal liberty excessively, and more proportionate arrangements that violate personal liberty to a lesser degree could have been set. Let us therefore proceed to examine this argument with regard to the specific arrangements prescribed in the Law.

(1)        Conferring the power of detention on military personnel

38.       S. 3(a) of the Law, cited in para. 15 above, provides that an internment order by virtue of the Law will be issued by the Chief of Staff "under his hand" and will include the grounds for the internment "without prejudicing state security requirement." S. 11 of the Law goes on to provide that "the Chief of Staff may delegate his powers under this Law to any officer of the rank of major-general that he may determine." According to the appellants, conferring the power of detention by virtue of the Law on the Chief of Staff, who may delegate it to an officer of the rank of major-general, is an excessive violation of the prisoners' right to personal liberty. In this context, the appellants emphasized that the Emergency Powers (Detentions) Law confers the power of administrative detention on the Minister of Defence only.

In the circumstances of the case, we have come to the conclusion that the state is correct in its argument that conferring the power of detention on the Chief of Staff or an officer of the rank of major-general falls within the zone of proportionality and we should not intervene. First, as we said above, the specific purposes of the Internment of Unlawful Combatants Law and the Emergency Powers (Detentions) Law are different, and there is therefore a difference in the arrangements prescribed in the two Laws. Since the Law under consideration before us was intended to apply, inter alia, in a situation of combat and prolonged military activity against terrorist organizations in a territory that is not subject to the total control of the State of Israel, there is logic in establishing an arrangement that confers the power of internment on military personnel of the highest rank. Secondly, it should be made clear that the provisions of international law do not preclude the power of detention of the military authority responsible for the security of a territory in which there are protected civilians. This may support the conclusion that conferring the power of detention on the Chief of Staff or an officer of the rank of major-general does not, in itself, violate the right to personal liberty disproportionately.

(2)        The prisoner's right to a hearing after an internment order is issued

39.  Ss. 3(b) and 3(c) of the Law provide as follows:

Internment of unlawful combatant

3.   (a) ...

(b) An internment order may be granted in the absence of the person held by the state authorities.

 (c) An internment order shall be brought to the attention of the prisoner at the earliest possible date, and he shall be given an opportunity to put his submissions in respect of the order before an officer of at least the rank of lieutenant-colonel to be appointed by the Chief of General Staff; the submissions of the prisoner shall be recorded by the officer and shall be brought before the Chief of General Staff; if the Chief of General Staff finds, after reviewing the submissions of the prisoner, that the conditions prescribed in subsection (a) have not been fulfilled, he shall quash the internment order.

According to s. 3(b) above, an internment order may be granted by the Chief of Staff (or a major-general appointed by him) without the prisoner being present. S. 3(c) of the Law goes on to provide that the order shall be brought to the attention of the prisoner "at the earliest possible date" and that he shall be given a hearing before an army officer of at least the rank of lieutenant-colonel, in order to allow him to put his submissions; the prisoner's submissions shall be recorded by the officer and brought before the Chief of Staff (or the major-general acting for him). According to the Law, if after reviewing the prisoner's arguments the Chief of Staff (or the major-general) is persuaded that the conditions for detention under the Law are not fulfilled, the internment order shall be quashed.

The appellants' argument in this context was that this arrangement violates the right to personal liberty excessively in view of the fact that the prisoner may put his submissions only after the event, i.e., after the internment order has been issued, and only before an officer of the rank of lieutenant-colonel, who will pass the submissions on to the Chief of Staff (or a major-general), in order that they reconsider their position. According to the appellants, it is the person who issues the order - the Chief of Staff or the major-general - who should hear the prisoner's arguments, even before the order is issued. These arguments should be rejected, for several reasons: first, it is established case law that the person who makes the decision does not need to conduct the hearing personally, and that it is also permissible to conduct the hearing before someone who has been appointed for this purpose by the person making the decision, provided that the person making the decision - in our case the Chief of Staff or the major-general acting on his behalf - will have before him all of the arguments and facts that were raised at the hearing (see HCJ 5445/93 Ramla Municipality v. Minister of the Interior [42], at p. 403; HCJ 2159/97 Ashkelon Coast Regional Council v. Minister of the Interior [43], at pp. 81-82). Secondly, from a practical viewpoint, establishing a duty to conduct hearings in advance, in the personal presence of the Chief of Staff or the major-general in times of combat and in circumstances in which there are liable to be many detentions in the combat zone as well, may present  significant logistical problems. Moreover, conducting a hearing in the manner proposed by the appellants is contrary to the purpose of the Law, which is to allow the immediate removal of the "unlawful combatants" from the cycle of hostilities in an effective manner. It should be emphasized that the hearing under s. 3(c) of the Law is a preliminary process whose main purpose is to prevent mistakes of identity. As will be explained below, in addition to the preliminary hearing, the Law requires that a judicial review take place before a District Court judge no later than fourteen days from the date of issue of the internment order, thereby lessening the violation claimed by the appellants. In view of all of the above, it cannot be said that the arrangement prescribed in the Law with respect to the hearing falls outside the zone of proportionality.

 (3)      Judicial review of internmentunder the Law

40.  S. 5 of the Law, entitled "Judicial Review", prescribes the following arrangement in subsecs. (a) - (d):

5.  (a) A prisoner shall be brought before a judge of the District Court no later than fourteen days after the date of granting the internment order; where the judge of the District Court finds that the conditions prescribed in s. 3(a) have not been fulfilled he shall quash the internment order.

(b) Where the prisoner is not brought before the District Court and where the hearing has not commenced before it within fourteen days of the date of granting the internment order, the prisoner shall be released unless there exists another ground for his detention under provisions of any law.

            (c)  Once every six months from the date of issue of an order under s. 3(a) the prisoner shall be brought before a judge of the District Court; where the Court finds that his release will not harm State security or that there are special grounds justifying his release, it shall quash the internment order.

(d) A decision of the District Court under this section is subject to appeal within thirty days to the Supreme Court, a single judge of which shall hear the appeal with; the Supreme Court shall have all the powers vested in the District Court under this Law.

The appellants argued before us that the judicial review process prescribed in s. 5 violates the right to personal liberty excessively, for two main reasons: first, under s. 5(a) of the Law, the prisoner should be brought before a District Court judge no later than fourteen days from the date of his detention. According to the appellants, this is a long period of time that constitutes an excessive violation of the right to personal liberty and of the prisoner's right of access to the courts. In this context the appellants argued that in view of the constitutional status of the right to personal liberty and in accordance with the norms applicable in international law, the legislature should have determined that the prisoner be brought to a judicial review "without delay." Secondly, it was argued that the period of time set in s. 5(c) of the Law for conducting periodic judicial review of the internment - every six months - is too long as well as disproportionate. By way of comparison, the appellants pointed out that the Emergency Powers (Detentions) Law prescribes in this regard a period of time that is shorter by half - only three months. In reply, the state argued that in view of the purpose of the Law, the periods of time set in s. 5 are proportionate and they are consistent with the provisions of international law.

41. S. 5 of the Law is based on the premise that judicial review constitutes an integral part of the administrative detention process. In this context it has been held in the past that -

'Judicial intervention in the matter of detention orders is essential. Judicial intervention is a safeguard against arbitrariness; it is required by the principle of the rule of law…. It ensures that the delicate balance between the liberty of the individual and the security of the public - a balance that lies at the heart of the laws of detention - will be maintained' (per President A. Barak in Marab v. IDF Commander in Judaea and Samaria [8], at page 368).

The main thrust of the dispute regarding the constitutionality of s. 5 of the Law concerns the proportionality of the periods of time specified therein.

With respect to the periods of time between the internment of the prisoner and the initial judicial review of the internment order, it has been held in the case law of this court that in view of the status of the right to personal liberty and in order to prevent mistakes of fact and of discretion whose price is likely to be a person's loss of liberty without just cause, the administrative prisoner should be brought before a judge "as soon as possible" in the circumstances (per President M. Shamgar in HCJ 253/88 Sajadia v. Minister of Defence [44], at pp. 819-820). It should be noted that this case law is consistent with the arrangements prevailing in international law. International law does not specify the number of days during which it is permitted to detain a person without judicial intervention; rather, it lays down a general principle that can be applied in accordance with the circumstances of each case on its merits. According to the aforesaid general principle, the decision on internment should be brought before a judge or another person with judicial authority "promptly" (see art. 9(3) of the International Covenant on Civil and Political Rights, 1966, which is regarded as being of a customary nature; see also the references cited in Marab v. IDF Commander in Judaea and Samaria [8], at pp. 369-370). A similar principle was established in arts. 43 and 78 of the Fourth Geneva Convention whereby the judicial (or administrative) review of a detention decision should be made "as soon as possible" (as stated in art. 43 of the Convention) or "with the least possible delay" (as stated in art. 78 of the Convention). Naturally the question as to what is the earliest possible date for bringing a prisoner before a judge depends upon the circumstances of the case.

In the present case, the Internment of Unlawful Combatants Law provides that the date for conducting the initial judicial review is "no later than fourteen days from the date of granting the internment order." The question that arises in this context is whether the said period of time violates the right to personal liberty excessively. The answer to this question lies in the purpose of the Law and in the special circumstances of the particular internment, as well as in the interpretation of the aforesaid provision of the Law. As we have said, the Internment of Unlawful Combatants Law applies to foreign entities who belong to terrorist organizations and who are engaged in ongoing hostilities against the State of Israel. As noted, the Law was intended to apply, inter alia, in circumstances in which a state of belligerence exists in territory that is not a part of Israel, in the course of which a relatively large number of enemy combatants may fall into the hands of the military forces. In view of these special circumstances, we do not agree that the maximum period of time of fourteen days for holding an initial judicial review of the detention order departs from the zone of proportionality in such a way as to justify our intervention by shortening the maximum period prescribed in the Law. At the same time, it should be emphasized that the period of time prescribed in the Law is a maximum period and it does not exempt the state from making an effort to conduct a preliminary judicial review of the prisoner's case as soon as possible in view of all the circumstances. In other words, although we find no cause to intervene in the proportionality of the maximum period prescribed in the Law, the power of detention in each specific case should be exercised proportionately, and fourteen whole days should not be allowed to elapse before conducting an initial judicial review where it is possible to conduct a judicial review earlier (cf. ADA 334/04 Darkua v. Minister of the Interior [45], at p. 371, in which it was held that even though under the Entry into Israel Law, 5712-1952, a person taken into custody must be brought before the Custody Review Tribunal no later than fourteen days from the date on which he was taken into custody, the whole of the aforesaid fourteen days should not be used when there is no need to do so).

In concluding these remarks it should be noted that s. 3(c) of the Law, cited above, provides that "An internment order shall be brought to the attention of the prisoner at the earliest possible date, and he shall be given an opportunity to put his submissions in respect of the order before an officer of at least the rank of lieutenant-colonel to be appointed by the Chief of General Staff" [emphasis added - D.B.]. Thus we see that although s. 5(a) of the Law prescribes a maximum period of fourteen days for an initial judicial review, s. 3(c) of the Law imposes an obligation to conduct a hearing for the prisoner before a military officer at the earliest possible time after the order is issued. The aforesaid hearing is certainly not a substitute for a review before a judge of the District Court, which is an independent and objective judicial instance, but the very fact of conducting an early hearing as soon as possible after the issuing of the order may somewhat reduce the concern over an erroneous or ostensibly unjustified detention, which will lead to an excessive violation of the right to liberty.

42.  As stated, the appellants' second argument concerned the frequency of the periodic judicial review of internment under the Law. According to s. 5(c) of the Law, the prisoner must be brought before a District Court judge once every six months from the date of issuing the order; if the court finds that the release of the prisoner will not harm state security or that there are special reasons that justify his release, the court will quash the internment order.

The appellants' argument before us was that a frequency of once every six months is insufficient and it disproportionately violates the right to personal liberty. Regarding this argument, we should point out that the periodic review of the necessity of continuing the administrative detention once every six months is consistent with the requirements of international humanitarian Law. Thus, art. 43 of the Fourth Geneva Convention provides:

'Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit.'

It emerges from art. 43 that periodic review of a detention order "at least twice yearly" is consistent with the requirements of international humanitarian law, in a manner that supports the proportionality of the arrangement prescribed in s. 5(c) of the Law. Moreover, whereas art. 43 of the Fourth Geneva Convention considers an administrative review that is carried out by an administrative body to be sufficient, the Internment of Unlawful Combatants Law provides that it is a District Court judge who must conduct a judicial review of the internment orders under the Law, and his decision may be appealed to the Supreme Court which will hear the appeal with a single judge (s. 5(d) of the Law). In view of all this, it cannot be said that the arrangement prescribed in the Law with regard to the nature and frequency of the judicial review violates the constitutional right to personal liberty excessively.

 (4) Departure from the rules of evidence and reliance upon privileged evidence within the framework of proceedings under the Law

43.  S. 5(e) of the Law provides as follows:

'Judicial review 

  5. ...

(e) It shall be permissible to depart from the laws of evidence in proceedings under this Law, for reasons to be recorded; the court may admit evidence, even in the absence of the prisoner or his legal representative, or not disclose such evidence to the aforesaid if, after having reviewed the evidence or heard the submissions, even in the absence of the prisoner or his legal representative,  it is convinced that disclosure of the evidence to the prisoner or his legal representative is likely to harm state security or public security; this provision shall not derogate from any right not to give evidence under Chapter 3 of the Evidence Ordinance [New Version], 5731-1971.

The appellants' argument before us was that the arrangement prescribed in the aforesaid s. 5(e) disproportionately violates the right to personal liberty, since it allows the judicial review of an internment order by virtue of the Law to depart from the laws of evidence and it allows evidence to be heard ex parte in the absence of the prisoner and his legal representative and without it being disclosed to them.

With respect to this argument it should be noted that by their very nature, administrative detention proceedings are based on administrative evidence concerning security matters. The nature of administrative detention for security reasons requires recourse to evidence that does not satisfy the admissibility tests of the laws of evidence and that therefore may not be submitted in a regular criminal trial. Obviously the confidentiality of the sources of the information is important, and it is therefore often not possible to disclose all the intelligence material that is used to prove the grounds for detention. Reliance on inadmissible administrative evidence and on privileged material for reasons of state security lies at the heart of administrative detention, for if there were sufficient admissible evidence that could be shown to the prisoner and brought before the court, as a rule the measure of criminal indictment should be chosen (see Federman v. Minister of Defence [41], at p. 185-186). There is no doubt that a proceeding that is held ex parte in order to present privileged evidence to the court has many drawbacks. But the security position in which we find ourselves in view of the persistent hostilities against the security of the State of Israel requires recourse to tools of this kind when granting a detention order under the Internment of Unlawful Combatants Law, the Emergency Powers (Detentions) Law or the security legislation in areas under military control.

It should be emphasized that in view of the problems inherent in relying upon administrative evidence for the purpose of detention, over the years the judiciary has developed a tool for control and scrutiny of intelligence material, to the extent possible in a proceeding of the kind that takes place in judicial review of administrative detention. In the framework of these proceedings the judge is required to question the validity and credibility of the administrative evidence that is brought before him and to assess its weight. In this regard the following was held in HCJ 4400/98 Braham v. Justice Colonel Shefi [46], at p. 346, per Justice T. Or:

'The basic right of every human being as such to liberty is not an empty slogan. The protection of this basic value requires that we imbue the process of judicial review of administrative detention with meaningful content. In this framework, I am of the opinion that the professional judge can and should consider not only the question of whether, prima facie, the competent authority was authorized to decide what it decided on the basis of the material that was before it; the judge should also consider the question of the credibility of the material that was submitted as a part of his assessment of the weight of the material. Indeed, that fact that certain "material" is valid administrative evidence does not exempt the judge from examining the degree of its credibility against the background of the other evidence and all the circumstances of the case. In this context, the "administrative evidence" label does not exempt the judge from having to demand and receive explanations from those authorities that are capable of providing them. To say otherwise would mean weakening considerably the process of judicial review, and allowing the deprivation of liberty for prolonged periods on the basis of flimsy and insufficient material. Such an outcome is unacceptable in a legal system that regards human liberty as a basic right.'

It has also been held in our case law that in view of the problems inherent in submitting privileged evidence ex parte, the court that conducts a judicial review of an administrative detention is required to act with caution and great precision when examining the material that is brought before it for its eyes only. In such circumstances, the court has a duty to act with extra caution and to examine the privileged material brought before it from the viewpoint of the prisoner, who has not seen the material and cannot argue against it. In the words of Justice A. Procaccia: "… the court has a special duty to act with great care when examining privileged material and to act as the 'mouth' of the prisoner where he has not seen the material against him and cannot defend himself" (HCJ 11006/04 Kadri v. IDF Commander in Judaea and Samaria [47], at para. 6; see also CrimApp 3514/97 A v. State of Israel [48]).

Thus we see that in view of the reliance on administrative evidence and the admission of privileged evidence ex parte, the court conducting a judicial review under the Internment of Unlawful Combatants Law is required to act with caution and precision in examining the material brought before it. The scope of the judicial review cannot be defined ab initio and it is subject to the discretion of the judge, who will take into account the circumstances of each case on its merits, such as the quantity, level and quality of the privileged material brought before him for his inspection, as opposed to the activity attributed to the prisoner that gives rise to the allegation that he represents a threat to state security. In a similar context the following was held:

'Information relating to several incidents is not the same as information concerning an isolated incident; information from one source is not the same as information from several sources; and information that is entirely based on the statements of agents and informers only is not the same as information that is also supported or corroborated by documents submitted by the security or intelligence services that derive from employing special measures' (per Justice E. Mazza in HCJ 5994/03 Sadar v. IDF Commander in West Bank [49], at para.  6).

Considering all the aforesaid reasons, the requisite conclusion is that reliance on inadmissible evidence and privileged evidentiary material is an essential part of administrative detention. In view of the fact that the quality and quantity of the administrative evidence that supports the cause of detention is subject to judicial review, and in view of the caution with which the court is required to examine the privileged material brought before it ex parte, it cannot be said that the arrangement prescribed in s. 5(e) of the Law, per se, violates the rights of prisoners disproportionately.

(5)     Prisoner's meeting with his lawyer

44. S. 6 of the Law, which is entitled "Right of prisoner to meet with lawyer"' provides the following:

'6. (a) The internee may meet with a lawyer at the

earliest possible date on which such a meeting may be held without harming state security requirements, but no later than seven days prior to his being brought before a judge of the District Court, in accordance with the provisions of s. 5(a).

(b) The Minister of Justice may, by order, confine the right of representation in the proceedings under this Law to a person authorized to act as defence counsel in the military courts under an unrestricted authorization, pursuant to the provisions of s. 318(c) of the Military Justice Law, 5715-1955.'

The appellants raised two main arguments against the proportionality of the arrangements prescribed in the aforesaid s. 6: first, it was argued that under s. 6(a) of the Law, it is possible to prevent a meeting of a prisoner with his lawyer for a period of up to seven days, during which a hearing is supposed to be conducted for the prisoner under s. 3(c) of the Law. It is argued that conducting a hearing without allowing the prisoner to consult a lawyer first is likely to render the hearing meaningless in a manner that constitutes an excessive violation of the right to personal liberty. Secondly, it was argued that s. 6(b) of the Law, which makes representation dependent upon an unrestricted authorization for the lawyer to act as defence counsel, also violates the rights of the prisoner disproportionately.

Regarding the appellants' first argument: no one disputes that the right of the prisoner to be represented by a lawyer constitutes a major basic right that has been recognized in our legal system since its earliest days (see in this regard CrimA 5121/98 Yissacharov v. Chief Military Prosecutor [50], at para. 14, and the references cited there). According to both the basic principles of Israeli law and the principles of international law, the rule is that a prisoner should be allowed to meet with his lawyer as a part of the right of every human being to personal liberty (see the remarks of President A. Barak in Marab v. IDF Commander in Judaea and Samaria [8], at pp. 380-381). Therefore, s. 6(a) of the Law provides that a prisoner should be allowed to meet with his lawyer "at the earliest possible date." It should, however, be recalled that like all human rights, the right to legal counsel, too, is not absolute, and it may be restricted if this is essential for protecting the security of the state (see HCJ 3412/93 Sufian v. IDF Commander in Gaza Strip [51], at p. 849; HCJ 6302/92 Rumhiah v. Israel Police [52], at pp. 212-213). As such, s. 6(a) of the Law provides that the meeting of the prisoner with his lawyer may be postponed for security reasons, but no more than seven days may elapse before he is brought before a District Court judge pursuant to s. 5(a) of the Law. Since pursuant to the aforementioned s. 5(a) a prisoner must be brought before a District Court judge no later than fourteen days from the date on which the internment order is granted, this means that a meeting between a prisoner and his lawyer may not be prevented for more than seven days from the time the detention order is granted against him.

Bearing in mind the security purpose of the Internment of Unlawful Combatants Law and in view of the fact that the aforesaid Law was intended to apply in prolonged states of hostilities and even in circumstances where the army is fighting in a territory that is not under Israeli control, it cannot be said that a maximum period of seven days during which a meeting of a prisoner with a lawyer may be prevented when security needs so require falls outside the zone of proportionality (see and cf. Marab v. IDF Commander in Judaea and Samaria [8], where it was held that "[a]s long as the hostilities continue, there is no basis for allowing a prisoner to meet with a lawyer," (at p. 381); see also HCJ 2901/02 Centre for Defence of the Individual v. IDF Commander in West Bank [53]).

In addition to the above, two further points should be made: first, even though the prisoner may be asked to make his submissions in the course of the hearing under s. 3(c) of the Law without having first consulted a lawyer, s. 6(a) of the Law provides that the state should allow the prisoner to meet with his defence counsel "no later than seven days prior to his being brought before a judge of the District Court…." It follows that as a rule, the prisoner is represented in the process of judicial review of the granting of the detention by virtue of the Law. It seems that this could reduce the impact of the violation of the right to consult a lawyer as a part of the right to personal liberty. Secondly, it should be emphasized that the maximum period of seven days does not exempt the state from its obligation to allow the prisoner to meet with his lawyer at the earliest possible opportunity, in circumstances where security needs permit this. Therefore the question of the proportionality of the period during which a meeting between the prisoner and his defence counsel is prevented is a function of the circumstances of each case on its merits. It should be noted that a similar arrangement exists in international law, which determines the period of time during which a meeting with a lawyer may be prevented with regard to all the circumstances of the case, without stipulating maximum times for preventing the meeting (see in this regard, Marab v. IDF Commander in Judaea and Samaria [8], at p. 381).

45.  The appellants' second argument concerning s. 6(b) of the Law should also be rejected. Making representation dependent upon an unrestricted authorization for the lawyer to act as defence counsel under the provisions of s. 318(c) of the Military Justice Law, 5715-1955, is necessary for security reasons, in view of the security-sensitive nature of administrative detention proceedings. The appellants did not argue that the need for an unrestricted authorization as aforesaid affected the quality of the representation that they received, and in any case they did not point to any real violation of their rights in this regard. Consequently the appellants' arguments against the proportionality of the arrangement prescribed in s. 6 of the Law should be rejected.

 (6)      The length of internment under the Law

46.       From the provisions of ss. 3, 7 and 8 of the Internment of Unlawful Combatants Law it emerges that an internment order under the Law need not include a defined date for the end of the internment. The Law itself does not prescribe a maximum period of time for the internment imposed thereunder, apart from the determination that it should not continue after the hostile acts of the force to which the prisoner belongs against the State of Israel "have ceased" (see ss. 7 and 8 of the Law). According to the appellants, this is an improper internment without any time limit, which disproportionately violates the constitutional right to personal liberty. In reply, the state argues that the length of the internment is not "unlimited", but depends on the duration of the hostilities being carried out against the security of the State of Israel by the force to which the prisoner belongs.

It should be said at the outset that issuing an internment order that does not include a specific time limit for its termination does indeed raise a significant difficulty, especially in the circumstances that we are addressing, where the "hostile acts" of the various terrorist organizations, including the Hezbollah organization which is relevant to the appellants' cases, have continued for many years, and naturally it is impossible to know when they will cease. In this reality, prisoners under the Internment of Unlawful Combatants Law may remain in detention for prolonged periods of time. Nevertheless, as we shall explain immediately, the purpose of the Law and the special circumstances in which it was intended to apply, lead to the conclusion that the fundamental arrangement that allows detention orders to be issued without a defined date for their termination does not depart from the zone of proportionality, especially in view of the judicial review arrangements prescribed in the Law.

As we have said, the purpose of the Internment of Unlawful Combatants Law is to prevent "unlawful combatants" as defined in s. 2 of the Law from returning to the cycle of hostilities, as long as the hostile acts are continuing and threatening the security of the citizens and residents of the State of Israel. On the basis of a similar rationale, the Third Geneva Convention allows prisoners of war to be interned until the hostilities have ceased, in order to prevent them from returning to the cycle of hostilities as long as the fighting continues. Even in the case of civilians who are detained during an armed conflict, the rule under international humanitarian law is that they should be released from detention immediately after the concrete cause for the detention no longer exists and no later than the date of cessation of the hostilities (see J. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law (vol. 1, 2005), at page 451; also cf. Hamdi v. Rumsfeld, 542 U.S. 507 (2004), at pages 518-519, where the United States Supreme Court held that the detention of members of forces hostile to the United States and operating against it in Afghanistan until the end of the specific dispute that led to their arrest is consistent with basic and fundamental principles of the laws of war).

The conclusion that emerges in view of the aforesaid is that the fundamental arrangement that allows a internment order to be granted under the Law without a defined termination date, except for the determination that the internment will not continue after the hostile acts against the State of Israel have ended, does not exceed the bounds of the room for constitutional maneuver. It should, however, be emphasized that the question of the proportionality of the duration of internment under the Law should be examined in each case on its merits and according to its specific circumstances. As we have said, the Internment of Unlawful Combatants Law prescribes a duty to conduct a periodic judicial review once every six months. The purpose of the judicial review is to examine whether the threat presented by the prisoner to state security justifies the continuation of the internment, or whether the internment order should be cancelled in circumstances where the release of the prisoner will not harm the security of the state or where there are special reasons justifying the release (see s. 5(c) of the Law). When examining the need to extend the internment, the court should take into account inter alia the period of time that has elapsed since the order was issued. The ruling in A v. Minister of Defence [1] concerning detention under the Emergency Powers (Detentions) Law, per President A. Barak, holds true in our case as well:

'Administrative detention cannot continue indefinitely. The longer the period of detention has lasted, the more significant the reasons that are required to justify a further extension of detention. With the passage of time the measure of administrative detention becomes onerous to such an extent that it ceases to be proportionate' (ibid., at p. 744).

Similarly it was held in A v. IDF Commander [16] with regard to administrative detention by virtue of security legislation in the region of Judea and Samaria that -

'The duration of the detention is a function of the threat. This threat is examined in accordance with the circumstances. It depends upon the level of risk that the evidence attributes to the administrative prisoner. It depends upon the credibility of the evidence itself and how current it is. The longer the duration of the administrative detention, the greater the onus on the military commander to demonstrate the threat presented by the administrative prisoner' (ibid., at para. 7).

Indeed, as opposed to the arrangements prescribed in the Emergency Powers (Detentions) Law and in the security legislation, a court acting pursuant to the Internment of Unlawful Combatants Law does not conduct a judicial review of the extension of the internment order, but examines the question of whether there is a justification for cancelling an existing order, for the reasons listed in s. 5(c) of the Law. Nevertheless, even an internment order under the Internment of Unlawful Combatants Law cannot be sustained indefinitely. The period of time that has elapsed since the order was granted constitutes a relevant and important consideration in the periodic judicial review for determining whether the continuation of the internment is necessary. In the words of Justice A. Procaccia in a similar context:

'The longer the period of the administrative detention, the greater the weight of the prisoner's right to his personal liberty when balanced against considerations of public interest, and therefore the greater the onus placed upon the competent authority to show that it is necessary to continue holding the person concerned in detention. For this purpose, new evidence relating to the prisoner's case may be required, and it is possible that the original evidence that led to his internment in the first place will be insufficient' (Kadri v. IDF Commander in Judaea and Samaria  [47], at para. 6).

In view of all the above, a court that conducts a judicial review of an internment under the Internment of Unlawful Combatants Law is authorized to confine and shorten the period of internment in view of the nature and weight of the evidence brought before it regarding the security threat presented by the prisoner as an "unlawful combatant" and in view of the time that has passed since the internment order was issued. By means of judicial review it is possible to ensure that the absence of a concrete termination date for the internment order under the Law will not constitute an excessive violation of the right to personal liberty, and that prisoners under the Law will not be interned for a longer period greater than that required by material security considerations.

(7) The possibility of conducting criminal proceedings parallel to an internment proceeding by virtue of the Law

47. S. 9 of the Law, which is entitled "Criminal proceedings", provides the following:

'9. (a) Criminal proceedings may be initiated against an unlawful combatant under the provisions of any law.

(b) The Chief of Staff may make an order for the internment of an unlawful combatant under s. 3, even if criminal proceedings have been initiated against him under the provisions of any law.'

According to the appellants, the aforesaid s. 9 violates the right to personal liberty disproportionately since it makes it possible to detain a person under the Internment of Unlawful Combatants Law even though criminal proceedings have already been initiated against him, and vice versa. The argument is that by conducting both sets of proceedings it is possible to continue to intern a person even after he has finished serving the sentence imposed on him in the criminal proceeding, in a manner that allegedly amounts to cruel punishment. In reply the state argued that this is a fitting and proportionate arrangement in view of the fact that it is intended to apply in circumstances in which a person will shortly finish serving his criminal sentence and hostilities are still continuing between the organization of which he is a member and the State of Israel; consequently, his release may harm state security.

In relation to these arguments we should reiterate what we said earlier (at para. 33 above), i.e. that initiating a criminal trial against a person is different in its nature and purpose from the measure of administrative detention. In general it is desirable and even preferable to make use of criminal proceedings where this is possible. Recourse to the extreme measure of administrative detention is justified in circumstances where other measures, including the conduct of a criminal trial, are not possible, due to lack of sufficient admissible evidence or because it is impossible to disclose privileged sources. However, the reality of prolonged terrorist operations is complex. There may be cases in which a person is detained under the Internment of Unlawful Combatants Law and only at a later stage evidence is discovered that makes it possible to initiate criminal proceedings. There may be other cases in which a person has been tried and convicted and has served his sentence, but this does not provide a satisfactory solution to preventing the threat that he presents to state security in circumstances in which, after having served the sentence, he may once again become a security threat. Since a criminal trial and administrative detention are proceedings that differ from each other in their character and purpose, they do not rule each other out, even though in my opinion substantial and particularly weighty security considerations are required to justify recourse to both types of proceeding against the same person. In any case, the normative arrangement that allows criminal proceedings to be conducted alongside detention proceedings under the Law does not, in itself, create a disproportionate violation of the right to liberty of the kind that requires our intervention.

Interim summary

48.  Our discussion thus far of the requirement of proportionality has led to the following conclusions: first, the measure chosen by the legislator, i.e. administrative detention that prevents the "unlawful combatant" from returning to the cycle of hostilities against the State of Israel, realizes the legislative purpose and therefore satisfies the requirement of a rational connection between the legislative measure and the purpose that the Law is intended to realize. Secondly, the measures mentioned by the appellants in their arguments before us, i.e. recognizing them as prisoners of war, bringing them to a criminal trial or detaining them under the Emergency Powers (Detentions) Law, do not realize the purpose of the Internment of Unlawful Combatants Law and therefore they cannot constitute a suitable alternative measure to internment in accordance with the Law. Thirdly, the specific arrangements prescribed in the Law do not, per se and irrespective of the manner in which they are implemented, violate the right to personal liberty excessively, and they fall within the bounds of the room for constitutional maneuver granted to the legislature. In view of all this, the question that remains to be examined is whether the combination of the arrangements prescribed in the Law satisfies the test of proportionality in the narrow sense. In other words, is the violation of the right to personal liberty reasonably commensurate with the public benefit that arises from it in achieving the legislative purpose? Let us now examine this question.

Proportionality in the narrow sense - A reasonable relationship between  violation of the constitutional right and the public benefit it engenders

49.       The Internment of Unlawful Combatants Law was enacted against the background of a harsh security situation. The citizens and residents of the State of Israel have lived under the constant threat of murderous terrorism of which they have been victim for years and which has harmed the innocent indiscriminately. In view of this, we held that the security purpose of the Law - the removal of "unlawful combatants" from the terrorist organizations' cycle of hostilities against the State of Israel - constitutes a proper purpose that is based on a public need of a kind that is capable of justifying a significant violation of the right to personal liberty. For all these reasons, we were of the opinion that the legislature should be accorded relatively wide room for maneuver to allow it to choose the proper measure for realizing the legislative purpose (see para. 31 above).

As we have said, the measure that the legislature chose in order to realize the purpose of the Internment of Unlawful Combatants Law is administrative detention in accordance with the arrangements that are prescribed in the Law. There is no doubt that this is a damaging measure that should be employed as little as possible. However, a look at the combined totality of the above arrangements, in the light of the interpretation that we discussed above, leads to the conclusion that according to constitutional criteria, the violation of the constitutional right is reasonably commensurate with the social benefit that arises from the realization of the legislative purpose. This conclusion is based on the following considerations taken together:

 First, for the reasons that we discussed at the beginning of our deliberations, the scope of application of the Law is relatively limited: the Law does not apply to citizens and residents of the State of Israel but only to foreign parties who endanger the security of the state (see para. 11 above).

Secondly, the interpretation of the definition of "unlawful combatant" in s. 2 of the Law is subject to constitutional principles and international humanitarian law that require proof of an individual threat as a basis for administrative detention. Consequently, for the purpose of internment under the Internment of Unlawful Combatants Law, the state must furnish administrative proof that the prisoner directly or indirectly played a material part - one which is neither negligible nor marginal - in hostile acts against the State of Israel; or that the prisoner belonged to an organization that is perpetrating hostile acts, taking into account his connection and the extent of his contribution to the organization's cycle of hostilities in the broad sense of this concept. In our remarks above we said that proving the conditions of the definition of "unlawful combatant" in the said sense includes proof of a personal threat that arises from the form in which the prisoner was involved in the terrorist organization. We also said that the state has declared before us that until now it has taken pains to prove the personal threat of all the prisoners under the Law specifically, and it has refrained from relying on the probative presumptions in ss. 7 and 8 of the Law. In view of this, we saw no reason to decide the question of the constitutionality of those presumptions (see paras. 24 and 25 above).

Thirdly, we held that in view of the fact that administrative detention is an unusual and extreme measure, and in view of its significant violation of the constitutional right to personal liberty, the state is required to prove, by means of clear and convincing evidence, that the conditions of the definition of "unlawful combatant" are fulfilled and that the continuation of the internment is essential. This must be done in both the initial and the periodic judicial reviews. In this context we held that importance should be attached both to the quantity and the quality of the evidence against the prisoner and to the extent that the relevant intelligence information against him is current (see paras. 22 and 23 above).

Fourthly, we attributed substantial weight to the fact that internment orders under the Internment of Unlawful Combatants Law are subject to preliminary and periodic judicial reviews before a District Court judge, whose decisions may be appealed to the Supreme Court, which will hear the case with a single judge. Within the framework of these proceedings, the judge is required to consider the question of the validity and credibility of the administrative evidence that is brought before him and to assess its weight. In view of the reliance upon administrative evidence and the fact that privileged evidence is admitted ex parte, we held that the judge should act with caution and great precision when examining the material brought before him. We also held that a court that conducts a judicial review of internment under the Law may restrict and shorten the period of internment in view of the nature and weight of the evidence brought before it regarding the security threat presented by the prisoner as an "unlawful combatant", and in view of the time that has elapsed since the internment order was issued. For this reason we said that it is possible, through the process of judicial review, to ensure that the absence of a specific date for the termination of the detention order under the Law does not violate the right to personal liberty excessively, and that prisoners by virtue of the Law will not be interned for a longer period than what is required by substantial security considerations (para. 46 above).

Finally, although the arrangements prescribed in the Law for the purpose of exercising the power of internment are not the only possible ones, we reached the conclusion that the statutory arrangements that we considered do not exceed the bounds of the room for maneuver to an extent that required our intervention. In our remarks above we emphasized that the periods of time prescribed by the Law for conducting a preliminary judicial review after the internment order has been granted, and with respect to preventing a meeting between the prisoner and his lawyer, constitute maximum periods that do not exempt the state from the duty to make an effort to shorten these periods in each case on its merits, insofar as this is possible in view of the security constraints and all the circumstances of the case. We also held that internment under the Internment of Unlawful Combatants Law cannot continue indefinitely, and that the question of the proportionality of the duration of the detention must also be examined in each case on its merits according to the particular circumstances.

In view of all of the aforesaid considerations, and in view of the existence of relatively wide room for constitutional maneuver in view of the essential purpose of the Law as explained above, our conclusion is that the Internment of Unlawful Combatants Law satisfies the third subtest of the requirement of proportionality, i.e., that the violation of the constitutional right to personal liberty is reasonably commensurate with the benefit accruing to the public from the said legislation. Our conclusion is based on the fact that according to the interpretation discussed above, the Law does not allow the internment of innocent persons who have no real connection to the cycle of hostilities of the terror organizations, and it establishes mechanisms whose purpose is to ameliorate the violation of the prisoners' rights, including a cause of detention that is based on a threat to state security and the conducting of a hearing and preliminary and periodic judicial reviews of internment under the Law.

Therefore, for all the reasons that we have mentioned above, it is possible to determine that the violation of the constitutional right to personal liberty as a result of the Law, although significant and severe, is not excessive. Our conclusion is therefore that the Internment of Unlawful Combatants Law satisfies the conditions of the limitation clause, and there is no constitutional ground for our intervention.

From the General to the Specific

50.  As we said at the outset, the appellants, who are inhabitants of the Gaza Strip, were originally detained in the years 2002-2003, when the Gaza Strip was subject to belligerent occupation. At that time, the administrative detention of the appellants was carried out pursuant to security legislation that was in force in the Gaza Strip. Following the end of military rule in the Gaza Strip in September 2005 and the nullification of the security legislation in force there, on 20 September 2005 the Chief of Staff issued internment orders for the appellants under the Internment of Unlawful Combatants Law.

On 22 September 2005 the Tel-Aviv-Jaffa District Court began the initial judicial review of the appellants' case. From then until now the District Court has conducted four periodic judicial reviews of the appellants' continuing internment. The appeal against the decision of the District Court not to order the release of the appellants within the framework of the initial judicial review was denied by this court on 14 March 2006 (Justice E. Rubinstein in CrimA 1221/06 Iyyad v. State of Israel [54]). Before us are the appeals on three additional periodic decisions of the District Court not to rescind the appellants' internment orders.

51.  In their pleadings, the appellants raised two main arguments regarding their particular cases: first, it was argued that according to the provisions of the Fourth Geneva Convention, Israel should have released the appellants when the military rule in the Gaza Strip ended, since they were inhabitants of an occupied territory that was liberated. Secondly, it was argued that even if the Internment of Unlawful Combatants Law is constitutional, no cause for internment thereunder has been proved with respect to the appellants. According to this argument, it was not proved that the appellants are members of the Hezbollah organization, nor has it been proved that their release would harm state security.

52.  We cannot accept the appellants' first argument. The end of military rule in the Gaza Strip did not obligate Israel to automatically release all the prisoners it held who are inhabitants of the Gaza Strip, as long as the personal threat posed by the prisoners persisted against the background of the continued hostilities against the State of Israel. This conclusion is clearly implied by the arrangements set out in arts. 132-133 of the Fourth Geneva Convention. Art. 132 of the Convention establishes the general principle that the date for the release of prisoners is as soon as the reasons that necessitated their internment no longer exist. The first part of art. 133 of the Convention, which relates to a particular case that is included within the parameters of the aforesaid general principle, goes on to provide that the internment will end as soon as possible after the close of hostilities. Art. 134 of the Convention, which concerns the question of the location at which the prisoners should be released, also relates to the date on which hostilities end as the date on which prisoners should be released from internment. Unfortunately, the hostile acts of the terrorist organizations against the State of Israel have not yet ceased, and they result in physical injuries and mortalities on an almost daily basis. In such circumstances, the laws of armed conflict continue to apply. Consequently it cannot be said that international law requires Israel to release the prisoners that it held when military rule in the Gaza Strip came to an end, when it is possible to prove the continued individual danger posed by the prisoners against the background of the continued hostilities against the security of the state.

53. With regard to the specific internment orders against the appellants by virtue of the Internment of Unlawful Combatants Law, the District Court heard the testimonies of experts on behalf of the security establishment and studied the evidence brought before it. We too studied the material that was brought before us during the hearing of the appeal. The material clearly demonstrates the close links of the appellants to the Hezbollah organization and their role in the organization's ranks, including involvement in hostile acts against Israeli civilian targets.  We are therefore convinced that the individual threat of the appellants to state security has been proved, even without resorting to the probative presumption in s. 7 of the Law (see and cf. per Justice E. Rubinstein in Iyyad v. State of Israel [54], at para. 8(11) of his opinion). In view of the aforesaid, we cannot accept the appellants' contention that the change in the form of their detention - from detention by virtue of an order of the IDF Commander in the Gaza Strip to internment orders under the Law - was done arbitrarily and without any real basis in the evidence. As we have said, the change in the form of detention was necessitated by the end of the military rule in the Gaza Strip, and that is why it was done at that time. The choice of internment under the Internment of Unlawful Combatants Law as opposed to detention under the Emergency Powers (Detentions) Law was made, as we explained above, because of the purpose of the Law under discussion and because it is suited to the circumstances of the appellants' cases.

The appellants further argued that their release does not pose any threat to state security since their family members who were involved in terrorist activities have been arrested or killed by the security forces, so that the terrorist infrastructure that existed before they were detained no longer exists. They also argued that the passage of time since they were arrested reduces the risk that they present. Regarding these arguments it should be said that after inspecting the material submitted to us, we are convinced that the arrest or death of some of the appellants' family members does not per se remove the security threat that the appellants would present were they to be released from detention. We are also convinced that, in the circumstances of the case, the time that has passed since the appellants were first detained has not reduced the threat that they present. In its decision in the third periodic review, the trial court addressed this issue as follows:

'The total period of the detention is not short. But this is countered by the anticipated threat to state security if the prisoners are released. As we have said, a proper balance should be struck between the two. The experts are once again adamant in their opinion that there is a strong likelihood that the two prisoners will resume their terrorist activity if they are released. In such circumstances, the operational abilities of the Hezbollah infrastructure in the Gaza Strip and outside it will be enhanced and the threats to the security of the state and its citizens will increase. The current situation in the Gaza Strip is of great importance to our case. The fact that the Hamas organization has taken control of the Gaza Strip and other recent events increase the risks and, what is more, the difficulty of dealing with them.... It would therefore be a grave and irresponsible act to release these two persons, especially at this time, when their return to terrorism can be anticipated and is liable to increase the activity in this field. I cannot say, therefore, that the passage of time has reduced the threat presented by the two prisoners, who are senior figures in the terrorist infrastructure, despite the differences between them. Neither has the passage of time reduced the threat that they represent to an extent that would allow their release.'

In its decision in the fourth periodic review the trial court also emphasized the great threat presented by the two appellants:

'The privileged evidence brought before me reveals that the return of the two to the field is likely to act as a springboard for serious attacks and acts of terror. In other words, according to the evidence brought before me, the respondents are very dangerous. In my opinion it is not at all possible to order their release. This conclusion does not ignore the long years that the two of them have been held behind prison walls. The long period of time has not reduced the threat that they represent' (at page 6 of the court's decision of 20 March 2008).

In view of all of these reasons, and after having studied the material that was brought before us and having been convinced that there is sufficient evidence to prove the individual security threat represented by the appellants, we have reached the conclusion that the trial court was justified when it refused to cancel the internment orders in their cases. It should be pointed out that the significance of the passage of time naturally increases when we are dealing with administrative detention. At the present time, however, we find no reason to intervene in the decision of the trial court.

In view of the result that we have reached, we are not required to examine the appellants' argument against the additional reason that the trial court included in its decision, relating to the fact that the evidence was strengthened by the silence of the first appellant in the judicial review proceeding that took place in his case, a proceeding that was based, inter alia, on privileged evidence that was not shown to the prisoner and his legal representative. The question of the probative significance of a prisoner's silence in judicial review proceedings under the Internment of Unlawful Combatants Law does not require a decision in the circumstances of the case before us and we see no reason to express a position on this matter.

Therefore, for all of the reasons set out above, we have reached the conclusion that the appeals should be denied.

 

Justice E.E. Levy:

I agree with the comprehensive opinion of my colleague, the President.

It is in the nature of things that differences may arise between the rules of international humanitarian law - especially written rules - and the language of Israeli security legislation, if only because those conventions that regulate the conduct of players on the international stage were formulated in a very different reality, and their drafters did not know of entities such as the Hezbollah organization and the like.

Therefore, insofar as it is possible to do so by means of legal interpretation, the court will try to narrow these differences in a way that realizes both the principles of international law and the purpose of internal legislation. In this regard I will say that I would have preferred to refrain from arriving at any conclusions, even in passing, regarding the provisions of ss. 7 and 8 of the Internment of Unlawful Combatants Law, 5762-2002. These provisions are a central part of this Law, as enacted by the Knesset. Insofar as there are differences between them and the provisions of international law, as argued by the appellants and implied by the state's declarations with regard to the manner in which it conducts itself de facto, the legislature ought to take the initiative and address the matter.

Justice A. Procaccia:

I agree with the profound opinion of my colleague, President Beinisch.

Appeals denied as per the judgment of President D. Beinisch.

8 Sivan 5768

11 June 2008

The Supreme Court Sitting as the High Court of Justice

                                                                                                            HCJ 9060/08

Before:                                         The Honorable President A. Grunis

                                                     The Honorable Justice S. Joubran                           

                                                     The Honorable Justice U. Vogelman          

The Petitioners:	Khaled Abdallah Abd al-Ghani Yassin Harbi Ibrahim Mustafa Mustafa Abd al-Rahim Abdallah Abd al-Ghani Dar Yassin
v.
The Respondents:	Minister of Defense, Ehud Barak IDF Commander in the West Bank Head of Civil Administration  Police District Commander for Judea and Samaria,      Shlomo Katabi Beit El Local Council Beit El Yeshiva Center
Applicants to Join:	M.K  Zehava Galon The Meretz faction The Ta’al faction M.K Dr. Ahmad Tibi Guy Sagiv David Abudraham Hana Yifat Abudraham
Application of Respondents 1-4 dated April 27, 2012 Date of Session:                14th of Iyyar, 5772 (May 6, 2012)         For the Petitioners:               Adv. Michael Sfard; Adv. Shlomi Zacharia; Adv. Avisar Lev For Respondents 1 – 4:        Adv. Uri Keidar; Adv. Osnat Mandel For Respondent 5:             Adv. Nethanel Katz For Respondent 6:                Adv. Yaron Kostliz; Adv. Noa Firer For Applicants to Join 1- 2: Adv. Omer Shatz For Applicants to Join 3- 4: Adv. Osama Saadi; Adv. Amar Yaasin. For Applicants to Join 5-7:  Adv. Ehud Yelink   Facts In HCJ 9060/08 petitions were filed with the High Court against the illegal construction of structures on a site next to the Beit El settlement. Following a series of hearings the State notified the court of its adoption of  a policy concerning the demolition of illegal building on private land and the arrangement of  construction on State land. As a result of this policy, illegal construction located on private land would be removed.  The Court gave a judgment giving effect to the State's undertaking to ensure the removal of the illegal structures within one year of the filing of said notification. One year later the State filed an application to "renew the hearing of the petition" based on the desire to reconsider the manner of implementing the policy  regarding illegal construction on private land. The State's reasons for the application were: (a) that an action had been filed in the District Court concerning the substantive question of the ownership and hence the legality of the structures and the inappropriateness of ignoring the existence of a pending action which was of clear relevance to the demolition order; (b) that the examination of the structures under adjudication in the petition could not be separated from illegal construction in other locations. The policy relating to priorities in enforcement of the law in the Zone should therefore be reconsidered, keeping in mind planning and property aspects and other political, public and operational aspects. The State therefore requested that the court grant a delay to enable the formulation of an updated policy, during which the structures would not be removed. The petitioners opposed the request, arguing that the State's failure to fulfill its obligation contained in a judgment constituted contempt of court, that there was no procedural proceeding that enabled the opening of a completed proceeding, and that the State's change of position was politically motivated and was not supported on legal grounds. Held In his decision of 7 May 2012 President Grunis ruled that there were no grounds for reopening the hearing on the petition. President Grunis ruled that the principal of res judicata does not allow the opening of an already completed proceeding. The principle of res judicata is based on a number of public interests. It enables the delineation of the borders of the legal proceeding, it assists in clarifying the legal position, it prevents the inconveniencing of litigants with the same legal issue and repeat litigation, and it ensures the proper functioning of the judicial system. From a constitutional perspective, the principle of res judicata also reflects the separation of powers between the branches of government in the sense that it signifies the termination of role of the judicial branch in the matter, given that the execution of judgment is a matter for the executive authority. The President further noted that apart from the res judicata issue, the State’s request to open the case also undermined the basic principle of fulfillment of judgments that ensures that the judicial proceeding does not become a meaningless, farcical proceeding, but rather that its results be executed within the time period prescribed by the court. This principle is particularly relevant when the body charged with execution of the judgment is the state. Finally, a change of policy is not grounds for deviating from the principle of res judicata, for otherwise the court would be required to reopen proceedings whenever a change in policy was decided on.

Israeli Supreme Court Decisions Cited

 

[1]        HCJ 3267/97 Rubinstein v. Minister of Defense [1999] IsrSC 55 (2) 241.

 

[2]        HCJ 7713/05 Noah – Israel Association of Organizations for the Protection of Animals v. Attorney General (not reported, 22.2.2006).

 

[3]        HCJ 29/52 S.A. Shachupek v. Tel Aviv – Jaffa City Council [1953] IsrSC 7 603.

 

[4]        CA 9085/00  Shitrit v. Sharvat Brothers Construction Co. Ltd [2003] IsrSC57(5) 462.

 

[5]        HCJ 9669/10 Abd el-Rahman Kassam Abd el-Rahman v. Minister of Defense [2014].

 

[6]        HCJ 7891/07 Peace Now Movement - Sh.A.L. Educational Enterprises v. Minister of Defense [2013].

 

[7]        HCJ 306/85 Kahane v. Knesset Chairman [1985] IsrSC 39 (4) 485.

 

[8]        HCJ 8887/06 Yusuf Musa Abd a-Razeq al-Nabut v. Minister of Defense (not yet reported, 25.3.12)

 

 

Decision

President A. Grunis

1.         Five permanent buildings and five prefabricated structures which were erected adjacent to the Beit El settlement, on a site known as "the Ulpana Hill"  are the focus of this proceeding. In the petition forming the subject of the current proceeding, filed on 29 October 2008, the court was requested to order the execution of demolition orders and stop-work orders issued against these structures. Four hearings were conducted in the presence of the litigants, at the end of which a judgment was given on 21 September 2011.

 In the course of clarifying the petition a long series of notifications was submitted to the court by the litigants as well as responding affidavits of the Respondents, after the issuing of order nisi in the petition (on 15 September 2010). In the responses of Respondents 1 - 4 (hereinafter: – "the State") it was consistently claimed that the land upon which the structures were built or located was privately owned Palestinian land. Accordingly the Civil Administration issued stop-work orders and demolition orders for the structures.  The claims raised by Respondent 6, the Beit El Yeshiva Center concerning the purchase of the land by the settling movement "Amana" were examined by the State and rejected.  The State's argument, as raised in the course of the hearings concerning the petition, is that since the structures were erected on settled land registered in the Tabu books, no validity attaches to the purchase claims for as long as the registration has not been altered. The State further told us that no transaction license had been requested for the alleged purchase, and in the absence of such license, the transaction, to the extent that it occurred, is invalid (notice on behalf of the State on 10 January 2010).

2,         On 1 May 2011 the State filed a response to the order nisi in which it stated that on the 28 February 2011 the Prime Minister had convened a meeting with the participation of senior ministers, the Attorney General and other relevant officials. In this meeting "the foundation was laid for an integrated policy concerning the demolition of illegal building on private land and regarding the arrangement of construction on State land, so that as a rule, illegal construction located on private land was to be removed". In that meeting it was also decide to take measures for the removal of the structures forming the subject of the petition within a year (response on behalf of the State of 1 May 2011, pp. 4 - 5).

3.         Following the notification of the State a judgment was given on the petition, at the end of the hearing conducted on 21 September 2011 (President D. Beinisch, Justices S. Joubran, and U. Vogelman). The judgment anchored the State's notification of 1 May 2011 to the court, and determined the following:

 

                        "We have recorded the State's notification of 1 May 2011 and the notification given to the court today - that pursuant to the decision adopted in a meeting headed by the Prime Minister and additional ministers in the Government, as well as the Attorney General, in accordance with which construction on private land would be removed, as opposed to construction on State land; it was decided that the construction forming the subject of the petition would be removed within one year of the filing of the said notification…. to the extent that the structures are not demolished before then by the possessors thereof.

 

                        In this notification the petition has been exhausted and the proceeding was terminated".

 

Hence, in accordance with the State’s notification to the court, which was incorporated into this judgment, the State was supposed to have demolished the structures by 1 May 2012.

4.         A year passed from the time of the State's notification being given, but the demolition orders were not executed. Instead, on the 27 April 2012, a few days before the termination of the period for the demolition of the structures, the State filed a notification and application to "renew the hearing of the petition". In the application it was written that "The Prime Minister and a ministerial forum wish to reconsider the manner of implementing the policy agreed upon, and as a result thereof, to also reconsider their specific position of which they gave notice to the Honorable Court concerning this petition" (notification of the State of 27 April 2012, p. 2). The State further noted that the structures earmarked for demolition were populated, with about 30 families resident therein and that a claim had been made by an Israeli body that the area on which most of the structures were erected was actually purchased by him in the year 2000, and that an action had been filed on the matter in the District Court (it will be noted that the action was filed on 19 September 2011, i.e. two days before the decision was given in the current proceeding). The State noted that even though the claims concerning the purchase of the land had already been raised in the past and rejected by the competent authorities in the Civil Administration, nonetheless, it argued that it was not possible to ignore the fact that the proceeding in the District Court was pending. The State further argued that the examination of the structures under discussion in the petition could not be separated from other construction in the settlement of Beit El, that most of which had been erected on private land, outside the current boundaries of the seizure order applied in the area. As such, it was claimed that any decision adopted in relation to the structures under discussion in the petition is liable to influence other building in Beit El and in other settlements, which were similarly built on private Palestinian land. In this context the State attorney claimed that in a series of petitions an undertaking had been given to remove structures in Judea and Samaria area or that the State had been obligated to do so in rulings of the Court. It was argued, that this obligation had broad implications and it was therefore "decided to reconsider the priorities in enforcement of the law in the area, which along with the planning and property aspects also had consideration for political, public and operational aspects"(ibid, p.5). In the framework of the renewed consideration preference would still be given to dealing with construction on private land, but the future of each particular structure would not be examined "from a narrow perspective" but rather in its overall context and having consideration for the "context of the events related to the removal" (ibid, p.6). It was further decided to suspend any further act of enforcement in the field until the exhausting of the process of legal clarification underway in relation to the ownership of the land. In order to enable the renewed consideration, the State requested the court to renew the hearing on the petition and to grant a delay of 90 days for the formulation of an updated policy, during which the structures would not be removed. Notably, in the course of the hearing, attorney for the State mentioned a period of 60 days.

5.         The petitioners objected to the State's application.  In their response the petitioners dwelt on the difficulty of reopening an issue which had terminated in a judgment. They claimed that the State's failure to fulfill its undertaking, that had been included in the judgment, constitutes contempt of court. According to the petitioners not only was there no procedural proceeding that enabled the opening of a completed proceeding, also but that the State had not presented any grounds for opening the proceeding. According to the petitioners the change of position was politically motivated and was not supported up by lawful, legal grounds that justifies the opening of the proceeding in which a judgment had been given.

6.         In wake of the State's application to reopen the proceeding, on 6 May 2012 we conducted a hearing in the presence of the litigants in which they reiterated their written pleadings. We examined the pleadings and have found no grounds for acceding to the application to open the proceeding. It is well established that "the point of departure is that once a judgment has been given, the judgment constitutes the final word in the litigation with respect to any additional litigation on the matter forming the subject of the ruling. This is the principle of res judicata. This principle is based on the public interest of the public, as well as that of the parties in the proceeding, that court proceedings should be brought to an end and that justice be done with the individual, without subjecting him to additional proceedings by reason of the same grounds or the same dispute" (HCJ 3267/97 Rubinstein v. Minister of Justice [1], at p. 244; see also HCJ 7713/05 Noah – Israel Association of Organizations for the Protection of Animals v. Attorney General [2] (hereinafter: "Noah case"). Once a final judgment has been made in a litigation, the parties cannot raise any claims, and certainly not claims that were resolved in the judgment (see: Nina Zaltzman, Res Judicata in Civil Proceedings, 3-12 (1991); (hereinafter: "Zaltzman"). The judgment makes it clear to all those involved that the legal proceeding is completed, and that subject to special exceptions all the relevant parties must act in order to execute the judgment and to give effect to the operative result determined therein.

7.         The principle of res judicata relies on a series of public interests. It enables the demarcation of the legal proceeding; it assists in clarifying the legal situation. It prevents the litigants from being inconvenienced with the same issue and a repeat litigation, and ensures the proper functioning of the judicial system (Zaltzman, pp. 12-15). From a constitutional perspective, the principle of res judicata also reflects the separation of powers in the sense that it signifies the completion of the judicial authority’s handling of the matter brought before it. The execution of the judgment is no longer a matter for the judicial branch but passes to the executive branch, whether by the mechanism of the Execution Office, or the various government ministries, where it concerns a judgment of the High Court of Justice directed against an authority of the central government.

8.         Even though the principal of res judicata has a number of exceptions, their scope is quite limited. Hence, for example, already in 1952 Justice M. Landau ruled in HCJ 29/52 S.A. Shachupek v. Tel Aviv – Jaffa City Council [3] at pp. 604-605:

 

"Nothing comes after the judgment of the High Court of Justice on a matter subject to its authority, and no argument can be heard claiming that a judgment of this court should be vacated because it was mistaken in its interpretation of the law, or in the determination of the facts, or in the procedure for the hearing that it adopted. The possibilities for renewed examination of a judgment of this court are restricted within very narrow borders. In accordance with general principles, a judgment may be vacated when it was granted as the result of an act of deception by one of the parties. This court will also vacate a judgment at the request of a party that was not present during the hearing, if convinced that the party’s absence was not his own fault. "

 

See also in the position of Justice A. Procaccia in CA 9085/00 Shitrit v. Sharvat Brothers Construction Co. Ltd.[4], at p.475 according to which:

 

"The principle of “functus officio“ is intended to ensure the finality of hearings and disputes between the parties, with the goal of achieving certainty, legal security, and preventing the parties from being inconvenienced after the completion of their trial. It is also intended to ensure the orderly functioning of the judicial system and preventing its engagement with repeated disputes over matters already resolved, whereas numerous disputes that have yet to be resolved are waiting in line… against the background of these trends, one can understand the narrow and strict boundaries that are permitted by law for reopening a completed legal decision and giving a later decision in the framework thereof. "

 

9.         Apart from the considerations of the finality of the hearing, and protecting the individual litigant's interest that the matter concerning him will not return to be heard in court, there is also the basic principle of performance of judgments. This basic principle ensures that the legal proceeding will not be a pointless proceeding but rather that its result will actually be executed out, within the time period prescribed by the court. Without this basic component the entire legal proceeding is frustrated, especially when the state is charged with carrying out the judgment (in this context see the judgment of Justice A. Procaccia in the Noah [2] case, para. 17 of judgment).

10.       Examination of the State's claim in its application to reopen the proceedings, in which the ruling was delivered about eight months ago, shows that they contain nothing that justifies deviation from the principle of res judicata. The State’s arguments do not show any exceptional and unique considerations that would warrant an order for the exceptional measure of “renewal of hearing”. The State’s principal claim is that the political echelon wishes to reexamine the manner of implementing the policy declared by the State in the proceeding before us, and in a series of additional proceedings (including HCJ 9669/10 Abd el-Rahman Kassam Abd el-Rahman v. Minister of Defense [5] and HCJ 7891/07 Peace Now Movement v. Sh.A.L. Educational Enterprises v. Minister of Defense [6]). Attorney for the State did not point to even a single legal precedent that supported the State’s application to open the proceeding anew. Nor did the State point to any new circumstances that supported its application. The fact of there being a legal proceeding pending, in which the settlers’ claims are being clarified, was already known before the judgment was given (on 21 September 2011). As such, what reason can there be for  granting the exceptional relief of reopening a legal proceeding that was heard over a number of years, the central facts of which were not disputed by the State, in which order nisi was issued and in which the State’s undertaking to act in a particular matter was recorded?!.

            It is specifically in proceedings before the High Court of Justice that special importance attaches to the fulfillment of the State’s undertakings, and maintenance of the principle of res judicata. Accepting the State’s position, whereby the desire to reexamine policy constitutes grounds for opening a completed proceeding, could lead to grave results. Policy, by definition, is not static. Is it feasible that each and every time that there is a renewed examination of policy that the State will request to reopen proceedings that were concluded in a judgment. Indeed, a change in policy per se is not grounds for deviating from the rule of the res judicata. As noted above, the authority to reopen a completed legal proceeding, assuming it exists, is reserved for exceptional situations and circumstances. No circumstances of this nature were show to exist in the case before us, even if it does raise political, public and social questions of a complex nature.

11.       It bears emphasis that the fact that the judgment in the petition was given in the form of recording of the State's undertaking and that an absolute order wasn’t issued under it, is irrelevant in terms of res judicata and the clear and fundamental obligation to fulfill judgments. Indeed, in cases in which the state gives an undertaking to execute any act or to refrain from its execution, the court occasionally avoids issuing an operative order having consideration for mutual respect between the branches of power. However, once the undertaking is included in a judgment, there is an obligation to fulfill the judgment for all intents and purposes. Conceivably, the fact that no operative order was issued may influence the possibility of filing a proceeding for contempt of court, in the event of the non-performance of the judgment (see regarding the possibility of instituting contempt of court proceedings by reason of non-fulfillment of a declaratory order: HCJ 306/85 Kahane v. Knesset Chairman [7], at p. 485). This was not the question before us, and accordingly we will not address it.

12.       It is for these reasons that we have found no grounds for granting the State's application to reopen the proceeding after judgment was given. Notwithstanding our decision, and in order to enable the State to comply with the undertaking that it gave and which was anchored in the court's judgment, we extend the period determined in the judgment for executing the demolition orders for another 60 days (on the inherent authority vested in the court to extend periods determined in judgments, see HCJ 8887/06 Yusef Mussa abd-a–Rusak al-Nabut v. Minister of Defense [8] para. 11 of the decision of Justice M. Naor). Accordingly, an extension is given until 1 July 2012 for the execution of the demolition orders in accordance with the undertaking given by the State in its written response to the court on 1 May 2011 and in the course of the oral hearing on 21 September 2011.

13.       As an aside it bears mention that after the State's notification concerning its request to reopen the proceeding was filed, a number of applications to join were filed to the court by M.K Zehava Galon and the Meretz faction, by M.K Dr. Ahmad Tibi and the Arab Movement for Renewal - Ta'al, and on behalf of Guy Sagiv, David Abudraham, and Hanna Yifa Abudraham, three of the settlers in the buildings forming the subject of the petition. We have not found any reason for granting the applications to join. The claims of the Knesset Members and their factions have already been presented fully and completely by the petitioners and their joiner would add nothing to the hearing. As for the settlers, no reason was given for their application to join, and nor was any affidavit submitted with it. For that reason alone the application could have been dismissed. All the same, on the merits of the application too, the applicants did not explain why they were only applying to the court at this particular stage, and not during the years in which the petition was conducted, and it would seem that insofar as the arguments in their application were brief, they were presented in the hearing both by the State and by Respondent 5.

 

16.       In view of which the application is rejected, subject to that which was set forth in para. 12 above. The State will bear the Petitioners’ fees for the sum of NIS 15,000.

 

Given today, 15^th of Iyyar 5772 (7 May 2012).

 

 

President                                 Justice                                                 Justice

 

 

 

Supreme Court of Israel

HCJ 129/13

 

Before:            The Honorable President A. Grunis

                        The Honorable Vice President M. Naor

                        The Honorable Justice E. Rubinstein

 

Petitioners:      1. Eli Axelrod

2. Moshe Axelrod

v.

Respondents: 1. Government of Israel 

2. Israeli Knesset

3. Ministry of the Interior

 

Petition to grant an order nisi

 

Date of Hearing: 21 Shvat 5774 (January 22, 2014)

 

On behalf of Petitioners:           Adv. Eli Axelrod

On behalf of Respondents 1,3: Adv. Ran Rosenberg

On behalf of Respondent 2:     Adv. Dr. Gur Bleigh

 

Judgment

 

President A. Grunis and Vice President M. Naor:

1.         This petition seeks to bring before this Court again a difficult and painful problem. This problem pertains to citizens of Israel, many thousands of them, who cannot marry in this Country because they are not members of one of the recognized religious groups, or one of them is not a member of one of those groups. In addition the petition relates to those who can marry in Israel, but do not wish to do so in a religious ceremony.

2.         The stated problem has been presented to this Court in several petitions argued in the last few years: HCJ 7127/11 Center for Jewish Pluralism v. Government of Israel (Dec. 5, 2011); HCJ 1143/11 Jerusalem Institute for Justice v. The Knesset (Oct. 18, 2012). The first petition was deleted and the second was denied, in both cases after the petitioners accepted the recommendations of the different panels hearing the cases to retract the petitions. There is nothing novel in the current petition in comparison to the previous ones. Clearly, the solution to the difficult problem has to be by way of Knesset legislation. However, the Court cannot order the legislature to legislate. There is a dramatic distinction between striking down a law due to a constitutional defect, and ordering the legislature to regulate a certain issue in legislation. The additional claims raised by the petitioners, including the one pertaining to the Marriage and Divorce (Registration) Ordinance and its treatment of civil marriage, do not substantiate a cause of action.

3.         Regrettably, we do not see a basis for the Court’s involvement.

 

President, Vice President

 

Justice E. Rubinstein:

A.        I join my colleagues’ judgment. I would like to note that, sadly, the problem invoked by the petitioners is very old, and has worsened with the wave of immigration from the Commonwealth of Independent States (former Soviet Union) from the late 1980’s, as it is undisputable that large numbers of those entitled to Shvut in a family’s two generations are not Jewish according to Halacha; even though they are of Israel seed, through father, grandfather, or grandmother.

            I would be the last to support intermarriage; however a solution to citizens seeking to marry must be given to them within their country. In my opinion in LFA 9607/03 Ploni v. Plonit (2006), paragraphs J-K, I said about them:

“Intermarriage, a painful issue since ancient days (see, during the first return to Zion – Ezra 9 1-2, 12 and chapter 10, and Nehemia 9 31), makes my heart cringe, due to its meaning in the historical respect and its impact on the state of the Jewish people and its size, to an existential degree … (But) I doubt that closing our eyes to the fact of these difficulties is the way to deal with intermarriage, given the factual and legal reality that has evolved over the years … It seems that the wave of intermarriage, which appears with great force within a big part of the Jewish diaspora and exists among our people as well since the waves of immigration of the previous decades – is not going to be stopped in this way, and attending to the larger matter is beyond the judicial scope … The place for decision is the legislature … the Legislature ought to consider an arrangement that would be suitable to those Israelis who cannot marry in Israel (emphasis in original – E.R.); I dare say, that if it were possible to persuade each and every Jewish man and woman, for many good reasons, to marry members of the Jewish people, there would be no-one happier than me, certainly so after a third of the People was decimated in the Holocaust. But since this is not the reality, the state should provide the suitable solutions, of course while accounting for its Jewish and democratic character – as well as for the slippery slope that can ensue.”

 

The son of a Jewish father and a non-Jewish mother – Petitioner 1 did nothing wrong. He is an Israeli citizen, as good as any of us, subject to duties and entitled to rights, including the right to marry. Since the 1970 amendment to the Law of Return, 1950, and the addition of Section 4A, the right to marry applies also to citizens entitled to Shvut and to their offspring. The Law on Matrimonial Partnership for People without Religion, 2010, does not apply to the Petitioner, since he seeks to marry a Jewish woman. He apparently chose not to convert into Judaism although he considers himself Jewish; to me this would have been a practical and commendable solution, but it is up to him and his personal decision. Therefore the state should devise a fair solution to those like him, one that would not make any of its citizens feel as if they are “second rate.” Indeed, the difficulty in this is clear and for that reason the Law on Matrimonial Partnership was dedicated to those without a religion, as its name suggests; however a solution to the complex question is required, while reserving marriage to the religious groups within themselves; the issue is clearly in the purview of the legislature.

 

Justice

 

The petition is denied. Given the circumstance no fees will be assessed.

 

Entered today, 25 Shvat 5774 (Jan. 26, 2014)

 

President                             Vice President                             Justice

 

 

In the Supreme Court Sitting as the High Court of Justice

                                                                                                                        HCJ 7245/10

                                                                                                                        HCJ 8357/10

                                                                                                                        HCJ 908/11

 

Before:                                                Her Honor Justice E. Arbel

                                                Her Honor Justice E. Hayut

                                                Her Honor Justice D. Barak-Erez

 

The Petitioner in                     

HCJ 7245/10:                          Adalah – The Legal Center for Arab Minority Rights in Israel

                                   

                                                v.

 

The Respondents:                   1. The Ministry of Social Affairs

                                                2. The National Insurance Institute

                                                3. The Knesset

 

The Petitioner in                      The Israel National Council for the Child

HCJ 8357/10: 

                                                v.

 

The Respondents:                   1. The Israeli Government

                                                2. The Minister of Finance

                                                3. The Attorney General

4. The Minister of Health

5. The Israeli Knesset

6. The National Insurance Institute

 

The Petitioners in                    1. The Association for Information on Vaccines

HCJ 908/11:                            2. Binyamin Brotski

                                                3. Matan Koren

                                                4. Netta Dror

                                                5. Itay Hadar

                                                6. Lilach Rochel                                             

 

                                                v.

 

The Respondents:                   1. The National Insurance Institute

                                                2. Director General, Ministry of Health

                                                3. The Speaker of the Knesset

 

Petitions for an order nisi and an interim order

 

Date of session:                       Tammuz 12, 5772 (July 2, 2012)

 

On behalf of the Petitioner    

in HCJ 7245/10:                      Adv. Z. Zausan, Adv. H. Jabarin

 

On behalf of the Petitioners   

in HCJ 8357/10:                      Adv. V. Windman, Adv. C. Pollack-Cohen

 

On behalf of the Petitioners   

in HCJ 908/11:                        Adv. A. Naveh

 

On behalf of Respondents     

1-2 in HCJ 7245/10 and

Respondents 1-4 and 6

in HCJ 8357/10 and the

Respondents in HCJ 908/11:  Adv. A. Keidar, Adv. M. Freeman

 

On behalf of Respondent 3

in HCJ 7245/10 and

Respondent 5 in HCJ

8357/10:                                  Adv. Dr. G. Bligh

 

 

Judgment

 

Justice E. Arbel:

 

The petitions before us concern the reduction of child allowance for a parent whose children have not received the required vaccines announced by the Director General of the Ministry of Health. In the petitions, the petitioners demand the revocation of Section 61(2)(d) of the Arrangements Law (Legislative Amendments for Implementation of the Economic Plan for 2009 and 2010), 5769-2009 (hereinafter, the “Arrangements Law” or the “Law”), on the grounds that it is unconstitutional.

 

The Arrangements Law

1.The Arrangements Law, which was enacted in 2009, included Amendment no. 113 (hereinafter, the “Amendment”) to the National Insurance Law [Consolidated Version], 5755-1995 (hereinafter, the “National Insurance Law”). The Amendment mainly concerns the gradual increase of the child allowances paid for the second, third and fourth child in a family unit. Concurrently, the Amendment orders the reduction of the child allowances paid for children who have not received the required vaccines based on their age and health condition and according to the Vaccination Program ordered by the Director General of the Ministry of Health. The main part of this arrangement is currently set out in Section 68(d) of the National Insurance Law:

(d)(1) If the child meets the provisions of Paragraph (2), the monthly child allowance paid for him will be reduced by the sum of NIS 100 (in this section – the “Sum of the Reduction”), provided that notice was given as stated in Subsection (e) and the 14-day period has passed as stated in the said subsection from the date of service of the notice according to the provisions of Subsection (h)(2); the reduction will begin on the 1st of the month following delivery of the notice to the Institute as stated in Paragraph (2);

(2) The Ministry of Health shall notify the Institute that six months have passed from the date on which the child was required to receive the vaccines based on his age and health condition and according to the Vaccination Program ordered by the Director General of the Ministry of Health; such notice shall be sent to the Institute no later than seven days after the date on which six months have passed as aforesaid;

(3) A program as stated in Paragraph (2) will be published in the Israel Official Gazette and shall include provisions regarding the type of vaccine, the vaccination schedule, additional dates on which a vaccine that was not administered on the required date may be supplemented, and the maximum age at which each vaccine may be administered (in this section, the “Vaccination Program”).

It should be noted that additional sections in this arrangement include: instructions regarding the notice that must be sent to parents whose children have not received vaccines as aforesaid, options to challenge and appeal decisions on the matter, sums of allowance reductions according to the number of children in the family, recalculation of the allowance after the child has been vaccinated as required or after the passage of the last date on which the vaccine, because of which the allowance was reduced, could be administered, etc.

2.Publication of the Vaccination Program by the Director General of the Ministry of Health was initially postponed because claims were raised regarding lack of access to Family Health Centers (“Tipat Chalav”) by the Bedouin population in the Negev, such that in practice the Amendment could not be implemented. After actions were taken to increase access and awareness among the Bedouin population in the Negev, the Director General of the Ministry of Health published a vaccination program by virtue of the Law, which included one vaccine named MMRV, a “quadrivalent” vaccine against four diseases: measles, mumps, rubella and varicella. The vaccine is given to infants at the age of one year and the program applies to infants born starting January 1, 2012, such that the first reduction of allowance will be made no earlier than July 1, 2013.

The petitions at bar were filed against this arrangement.

HCJ 7245/10 –Petitioners’ Claims

3.The petitioners are organizations and associations that act to promote Arab and Bedouin minority rights, as well as residents and chairpersons of local committees of three Bedouin villages in the Negev, in which, on the date this petition was filed, no Family Health Center operated.

4.First, the petitioners claim that the Amendment was passed following a coalition agreement, and that prior to its approval no discussion was held in respect thereof. They also argue the respondents did not base the approval of the Amendment on any analysis or research. Second, the petitioners claim that the Amendment violates the children’s constitutional rights. According to them, the child allowance belongs to the children themselves, even though it is remitted to their parents. The court has emphasized on various occasions the importance and objective of the child allowances is for the children’s welfare. The conclusion, therefore, according to the petitioners, is that reduction of the allowances harms the children and violates their rights, mainly children belonging to poor families that will be forced to waive monetary expenses necessary for the upbringing and development of the children. It is argued that the Amendment violates the supreme principle of the best interest of the child, which has been established in the case law of the Supreme Court and in international treaties. The petitioners further claim that the Amendment violates the principle of equality between children, as it creates an irrelevant distinction between children who have received vaccines and those who have not received vaccines, and between children whose parents have access to preventive medical services and children for whom the State has not ensured access to such services. They further claim that the Amendment violates the children’s constitutional right to the property, since the allowances belong to them. They claim that the very payment of the insurance contributions to the National Insurance Institute create a contractual agreement between the parent and the National Insurance Institute, which includes the expectation of payment of child allowances against payment of the insurance contributions by the parent. Violating this expectation, it is claimed, is also contrary to

5.According to the petitioners, the violation of the aforementioned constitutional rights does not satisfy the conditions of the limitation clause. The violation, it is argued, is not for a proper purpose. The violation was made without examination and without an appropriate foundation; it aggravates poverty and socioeconomic gaps; and it also harms the public interest that mandates protecting and avoiding harm to those children who are not being vaccinated.

6.It is further asserted that the violation does not satisfy the threefold proportionality test. The violation does not satisfy the rational connection test, since the means chosen do not achieve the objective of protecting the child’s health and public health. According to the petitioners, the Amendment in fact harms the child’s wellbeing, health, development, property and right to social security, and causes a deepening of poverty. It is asserted that punitive use of the allowances is prohibited, and that the allowances should not be used to combat various negative or wrongful phenomena. The Amendment punishes the children for non-receipt of vaccination services.

The petitioners further claim that the violation does not meet the second proportionality test, the less harmful means test. According to them, other appropriate means could have been adopted to achieve the goal, such as making preventive health services accessible in the unrecognized villages in the Negev. The petitioners assert that the main population that will be harmed by the Amendment is the children residing in the Bedouin villages, including the children of the unrecognized villages. According to them, the high rate of unvaccinated Bedouin children is the product of the State’s failure to provide preventive health services at Family Health Centers. The Bedouin children’s access to these services is limited. In approximately forty-five unrecognized villages there are, it is argued, only twelve Family Health Centers, and even those were only put in place after a petition to the HCJ, and some are under threat of closure. The petitioners add that the residents of these villages also have limited mobility due to the absence of driving licenses and suitable public transportation in the area, and that they have low socioeconomic status and a very high rate of poverty. The Amendment therefore punishes the Bedouin children through no fault of their own, and due to the Ministry of Health’s failure to fulfill its obligation to realize these children’s rights from the outset. This punishment will further aggravate the socioeconomic status of the Bedouin children, and deepen the social gaps between this population and the general population. The petitioners assert that despite the neutral language of the Amendment, the said data reveal that, de facto, it discriminates against the Bedouin children on the basis of nationality.

Finally, the petitioners claim that the violation also fails to fulfill the narrow proportionality test. According to them, democracy cannot justify punishing children because they have not been vaccinated by their parents. The Amendment leads to a result opposite to that sought by the legislature and, instead of protecting the children’s health, causes them additional harm.

7.In supplementary pleadings filed by the petitioners on August 16, 2012, the petitioners seek to emphasize the claim that the violation of rights should be examined in light of the fact that the matter concerns children, a group with special characteristics which mandate special constitutional protection. According to them, this fact distinguishes between a regular violation of the right of equality, which may be a permitted distinction, and a violation which falls under the definition of prohibited discrimination, i.e. violation of the constitutional right.

HCJ 8357/10 – The Petitioner’s Claims

8.The petitioner in HCJ 8357/10 is the Israel National Council for the Child. It too asserts that the Amendment constitutes a violation of the equality between children whose parents vaccinated them and children who have not been vaccinated for whatever reason. According to the petitioner, this is not a distinction that is relevant to the purpose of the legislation. The purpose of the child allowance arrangement, it is argued, is to allow a redistribution of income among the population, transferring income from citizens who have no children to those who have children and whose income needs to be divided between a greater number of persons. According to the petitioner, the allowance is not a prize for desired behavior, and conditioning the allowance on a condition unrelated to the size of the family is wrongful ab initio. The petitioner claims that the case does not concern denial of a benefit given to parents for vaccinating their children, as the State claims, since the allowance increment granted in the Amendment does not apply to the first child or the fifth and any subsequent children. The Amendment may also harm populations that are already weakened, who do not vaccinate their children due to lack of access to Family Health Centers or due to the absence of time and financial resources. The petitioner emphasizes that the rate of unvaccinated children is particularly high in the unrecognized settlements in the Negev as a result of a lack of physical, cultural and linguistic access to vaccination services. The petitioner further claims an additional violation of the right to social security which will bring more children into the cycle of poverty and deepen penury among families already below the poverty line, contrary to the objective of the child allowances, particularly with respect to the first child and the fifth child onwards in the family.

9.The petitioner argues that the violation of the constitutional rights of the children does not satisfy the conditions of the limitation clause. The objective of increasing the vaccination rate is foreign to the purpose of the allowances, and therefore is not a proper purpose. Introducing this consideration will create a dangerous precedent whereby allowances may be reduced for any health, educational or social reason. The proportionality test is also not satisfied according to the petitioner. When the reasons for non-vaccination are ideological or depend on access to health services, it is clear that the reduction of the allowances will not affect vaccination. Therefore, the means are inconsistent with the purpose. The lack of consistency, it is claimed, stands out against the background of the data regarding the high rate of vaccination in the State of Israel, mainly with respect to the vaccinations currently required by the Vaccination Program published in accordance with the Amendment. The petitioner makes a distinction between a benefit, the conditioning of which on vaccination may be proportionate, and the imposition of a sanction for failure to vaccinate which is not proportionate. The petitioner rejects the State’s claims regarding the measures taken in order to moderate the harm. It further claims that there are many and varied measures for achieving the goals reflected in the Amendment that do not violate the children’s rights and have a greater benefit potential. Thus, it is possible to act to increase awareness and improve access to child vaccination services.

HCJ 908/11 – The Petitioners’ Claims

10.The petitioners in HCJ 908/11 are the Association for Information on Vaccines and parents whose children they argue suffered various negative reactions following a vaccination. The petitioners claim that there are differences of opinion in the medical community and among the public regarding the effectiveness of vaccines and the severity of their side effects. Hence, they believe that parents should be allowed the right to choose whether or not to vaccinate their children. According to them, the fact that there is a law aimed at compensating those injured by vaccines proves that vaccines are not risk-free. The petitioners further assert that the Amendment violates the right to equality, the individual’s right to autonomy and the right to autonomy of parents in the upbringing of their children. The petitioners challenge the Amendment legislation procedure and its inclusion in the Arrangements Law, which does not allow the issue to be thoroughly discussed and examined. Similar to the other petitions, these petitioners claim that the violation does not satisfy the conditions of the Limitation Clause.

The Respondents’ Claims

11.Respondents 1-5 the legislative proceedings, which began at the initiative of the Director General of the Ministry of Health, and included preparation and examination of the data in Israel and worldwide. A separate legislative memorandum was subsequently circulated, unlike the regular procedure for enactment of the Arrangements Law, in order to allow specific examination of the matter. The memorandum was discussed both at the various government ministries and at the Finance Committee of the Knesset, and conflicting positions were heard. The respondents note that it was decided to stop collecting the Family Health Centers’ fees in order not to create an economic barrier to vaccination. The respondents further specified the actions that were performed by the ministries for the implementation of the Law, including increasing access to Family Health Centers and increasing awareness of the Amendment to the National Insurance Law.

12.The respondents emphasize the importance of the MMRV vaccine and the severity of the diseases against which it immunizes. According to them, the vaccine is intended to combat diseases that can cause severe harm to public health, and particularly to the health of children. In addition, these diseases are highly contagious. The respondents stress that according to professional opinion, in order to reach “herd immunity”, which protects even those who cannot be immunized or who have not developed resistance despite having received the vaccine, the immunization coverage required in the population is approximately 95%. The respondents further state the importance of immunization coverage to each individual child, relative to both the child population and the general population. They also note the expected economic and social repercussions for the State due to the absence of effective prevention of disease outbreak.

13.The respondents maintain that the default is that the Court will not be inclined to intervene in socioeconomic policy established in primary legislation of the Knesset. The respondents further claim that the legislative procedure was duly carried out and does not create cause for the Court’s intervention. The respondents also assert that the Amendment does not violate constitutional rights. With respect to violation of the children’s rights, the respondents contend that the allowance is not a direct right of the child, but rather the right of the parents, intended to help them support the family unit. It is argued that the fact that the amount of the child allowance depends on the birth order of the child in the family supports this conclusion. In addition, on the practical level, it is the parents who decide on the use of the allowance, and they are not obligated to use it for purposes pertaining directly to the children. According to the respondents, even if the allowance did belong to the children, there is no case law establishing a property right for recipients of the allowances. 

14.According to the respondents, the Amendment does not violate the constitutional right to minimal dignified existence. According to the respondents, there is no room for the assumption that any change in the allowance’s entitlement rate constitutes a violation of a constitutional right. They refer to case law that determines that the array of social rights does not necessarily reflect the bounds of the right to social security at the constitutional level. Moreover, the case at bar concerns the reduction of an allowance that for the most part corresponds to the allowance increment that was granted in the Amendment, and therefore there is no ground for the assertion that the Amendment will violate the right to minimal dignified existence. With respect to the violation of equality, the respondents claim that the Amendment establishes an egalitarian norm which seeks to incentivize individuals to take action that is highly desirable from a social and health perspective, and it cannot be said that it constitutes a discriminatory norm. Every parent is able to ensure that his child is vaccinated, and in such a case, the child allowance will not be reduced. In any event, it is argued that there is no violation of equality at the constitutional level—that is, a violation that is closely and pertinently related to aspects of human dignity as a constitutional right. As for the assertion of consequential discrimination on the basis of nationality, the respondents claim that the data indicate a similar rate of vaccination in the Jewish sector and in the Arab sector, while in the Arab sector there is a slightly lower rate of vaccination than in the Bedouin sector. The respondents admit that the percentage of vaccination in the unrecognized villages in the Negev is lower, but believe that the current level of access to Family Health Centers in these settlements, after various actions have and are being taken, is reasonable and appropriate. Finally, the respondents assert that the Amendment does not violate the constitutional rights to autonomy and to parenthood. They state that the professional position of the Ministry of Health, which is based on the prevailing approach in the medical world, is that vaccines are a desirable, efficient and safe method of preventing morbidity. They claim that the fact that there is a professional dispute on the matter does not provide grounds for the Court’s intervention in primary legislation. They further argue that the law does not force parents to vaccinate their children, but merely creates an economic incentive to vaccinate. In any event, it is argued that there is no violation whose severity rises to the level of a violation of a constitutional right. The respondents believe that the Amendment promotes other aspects of human dignity, leaving no basis to determine that the bottom line is injurious.

15.Alternatively, the respondents assert that even if it is determined that a constitutional right is being violated, the violation is lawful and satisfies the conditions of the Limitation Clause. They state that the purpose of the Amendment is protection of children while ensuring their health and welfare and caring for public health in general. This, they claim, is a proper purpose the values of the State of Israel. They further claim that the purpose is not foreign and extraneous to the National Insurance Law. They also assert that the Amendment satisfies the three proportionality tests. Experience in other countries establishes the effective connection between economic incentives and the conduct of parents with respect to their children, including increasing vaccination rates. Regarding the less harmful means test, the respondents admit that other alternatives exist to incentivize the vaccination of children. However, they claim that the means chosen by the legislator do not exceed the bounds of proportionate measures. They add that the State may intervene in arrangements and regulation of conduct where there is a public good that creates a “market failure” in the actions of citizens, each of whom is relying on the immunization of the other. Finally, they claim that the proportionality requirement in its narrow sense is fulfilled, in view of the clear public interest in vaccinating children and maintaining a high vaccination rate on the one hand, and considering that the harm is limited and proportionate, taking into account the conditions and limitations set forth in the legislation regarding reduction of the allowance, on the other hand.

16.The respondents refer in detail to the issue of the repercussions of the Amendment on children in the Bedouin diaspora. They argue that following actions taken on behalf of the respondents, there is currently reasonable and adequate access of the Bedouin population to Family Health Centers. In addition, they state that the MMRV vaccination rate in the Bedouin population registered at Family Health Centers is higher than the MMRV vaccination rate in the Jewish sector.

17.Respondent 6, the Knesset, rejects the petitioners’ claims and joins the position and reasoning of Respondents 1-5.

Deliberation and Decision

Claims Pertaining to the Legislative Process

18.The petitioners raise claims concerning the enactment of the Amendment in the framework of the Arrangements Law in expedited legislative proceedings, and argue that the Amendment was born out of a coalition agreement without comprehensive ground work. These claims should be dismissed. As detailed by the respondents in their response, the Amendment emerged following the request of the Director General of the Ministry of Health in 2008, Prof. Avi Israeli, to the Ministry of Finance, in which he requested to examine the possibility of conditioning child allowances on various acts, including vaccination of children. In 2009, the issue was also introduced into the coalition agreements, but there is nothing wrong with that in itself. Following the request of the Ministry of Health, the Ministry of Finance carried out a review of similar arrangements around the world, as well as examined the vaccination data in Israel. The resulting position paper stated that the use of allowance conditioning around the world to increase school attendance and the use of preventive medicine has been proven to be effective. It further indicated that there is a phenomenon in Israel of not vaccinating infants, contrary to the Ministry of Health’s recommendation. An outbreak of tuberculosis in Israel in 2008 was mentioned, and it was emphasized that the Ministry of Health has no effective means to handle the said problem. The position paper proposed a model whereby receipt of child allowance would be conditioned upon regular attendance at an educational institution and receipt of the vaccines required by the child’s age and health condition. As part of the discussions in preparation for the Arrangements Law, several discussions regarding this proposal were held at the relevant ministries as well as before the Attorney General. In the course of these discussions, several changes were made to the model proposed by the Ministry of Finance. Later, a Government Resolution was made generally adopting the proposed model with certain changes, primarily the reduction in child allowances, rather than their denial, and the establishment of caps for the reduction in each family.

19.Following the Government Resolution, and contrary to the regular procedure in the framework of the Arrangements Law, the Ministry of Finance circulated a separate legislative memorandum in order to allow continued examination and detailed discussion on the issue. The memorandum was examined by various entities at the ministries, and the Ministry of Justice also forwarded its comments regarding the memorandum. In addition, the Finance Committee of the Knesset held a discussion on the memorandum and examined the arrangement established therein. Prior to the discussion, the committee members received an analysis on the matter prepared by the Knesset Research and Information Center, which also included positions opposing the proposed arrangement. Many entities from the various ministries and from the National Insurance Institute were present at the Committee’s discussion on June 24, 2009, as well as representatives of the Israel National Council for the Child, one of the petitioners at bar. The vaccination data in the various sectors in the State of Israel were presented to the members. On July 7, 2009, another discussion was held at the Finance Committee, and its members were informed of the removal of the condition of regular attendance at an educational institution. Finally, the Finance Committee approved the bill for a second and third reading. The law in its final version was approved by the Knesset on July 14, 2009 after a discussion that included specific reference to the issue at bar (see the Knesset minutes of July 13, 2009, available at http://www.knesset.gov.il/plenum/data/02626209.doc#_Toc258334465).

20.In order to examine the petitioners’ claims regarding the legislative proceedings described above, it is necessary to mention the case law that held that intervention of this Court in parliamentary proceedings will be limited to cases in which “the legislative process causes deep harm to material values of the constitutional regime[.]” (HCJ 6784/06 Shlitner v. The Pensions Commissioner, Paragraph 36 of the opinion of Justice Procaccia (January 12, 2011)). The test that was set out is “whether the defect in the legislative proceeding goes to the root of the proceeding, and whether it harms basic values of the constitutional regime.” (Id). It was further held that an expedited legislative proceeding, such as the Arrangements Law, does not, in itself, lead to the striking down of the law. Even in such a case, the Court will examine whether there was a defect that goes to the root of the proceeding to an extent that justifies judicial intervention, and the consequence of such a defect in accordance with the severability model. (HCJ 4885/03 The Poultry Breeders in Israel Organization Agricultural Cooperative Society Ltd. v. The Israeli Government [2004] IsrSC 59(2) 14, 42 (hereinafter, “The Poultry Breeders Organization Case”); HCJ 3106/04 The Association for Civil Rights in Israel v. The Knesset [2005] IsrSC 59(5) 567). It was further held that “even if it were proven that the legislative procedure prevented the holding of an in-depth and exhaustive discussion and impaired the ability of Knesset members to formulate a well-established position with respect to each one of the issues included in the bill, this is not enough to justify judicial intervention.” (The Poultry Breeders Organization Case, on p. 50).

21.In the case at bar, there is no room for judicial intervention in the legislative proceedings of the Amendment. Contrary to the practice with the Arrangements Law, a separate legislative memorandum was circulated on the issue in question to the various ministries for their comments. In addition, as can be seen from the chain of events reviewed above, the issue was discussed and examined by various entities; various positions were heard, a report of the Knesset Research and Information Center was prepared and data were presented regarding the success of similar arrangements around the world. In the course of the discussions, the bill was modified, narrowed, and arrangements were added in order to reduce the harm to the entitled population. The issue was also raised in the discussion at the Knesset, and objections by various Knesset Members were heard regarding conditioning the child allowances on the vaccination of children. Indeed, there may have been room for a more in-depth discussion with a broader foundation. However, this is not a defect that goes to the root of the proceeding, and therefore there is no room for the Court’s intervention based on a defect in the legislative proceeding. (See and compare HCJ 494/03 Physicians for Human Rights – Israel v. The Minister of Finance [2004[ IsrSC 59(3) 322, 330 (hereinafter, “PHR Case”)).

Regarding the Content of the Legislation

22.Before examining the constitutionality of the Amendment, we must first state the essence and purpose of the child allowance arrangement. I will then review the standpoint of the Ministry of Health and medical science on vaccines in general, and specifically on the MMRV vaccine. These reviews will lay the foundation for examining the constitutionality of the Amendment to the National Insurance Law. As part of this examination, I will examine the question, as customary, of whether constitutional rights established in Basic Law:

 

Child Allowance – the Arrangement and its Purpose

23.

24.Johnny Gal Taub Center  Social Policy Dan BenDavidEditor, 2010) (hereinafter, “Gal”); HCJFH 4601/95 Serossi v. The National Labor Court [1998) IsrLC 52(4), 817, 831; HCJ 6304/09 Lahav, The Umbrella Organization for Independent Businesspeople v. The Attorney General, Paragraphs 43-44 (September 2, 2010) (hereinafter, “Lahav Case”)). The social insurance system is supposed to ensure minimal dignified existence for all of its residents and to protect their standard of living. The system is based on the principle of social solidarity and mutual assistance. (LCA 7678/98 The Payment Officer v. Doctori [2005] IsrSC 60(1) 489, 525; Lahav Case, Paragraphs 44, 58). The purpose of the child allowances is to help families with children to bear the increasing costs of raising children. In fact, the child allowances to equalize the state of different-sized families whose level of income are equal. In addition, they help families not to fall below the poverty line due to the added expenses of having children, and protect the family against exposure to the social risk of a decline in the standard of living created as a result of expansion of the family. (Abraham Doron “The Erosion of the Israeli Welfare State in 2000-2003: The Case of Children Allowances”, Labor, Society and Law, 11 95, 106 (5766); Gal, on p. 254; Ruth Ben-Israel “Family and Social Security: From A Traditional Division of Labor to a New Division”, Menashe Shava’s book, 207, 215-216 (Aharon Barak & Daniel Friedmann eds., 2006)). Understandably, these allowances affect the welfare of the child in the family, and therefore one of the purposes of the allowance is to further the best interests of the child and caring for the children’s welfare. (NIA /04 Azulay v. The National Insurance Institute, the opinion of Deputy President E. Barak-Ussoskin (November 2, 2006) (hereinafter, “Azulay Case”); HCJ 1384/04 Betzedek – The American-Israeli Center for the Promotion of Justice in Israel v. The Minister of the Interior [2005] IsrSC 59(6) 397, 408 (hereinafter, “Betzedek Center Case”)).

25.The Competent Authority under the Invalids (Nazi Persecution) Law 5717-1957 [1978] IsrSC 32(3) 408 (hereinafter, “Sin Case”), Justice C. Cohen holds that the child allowances are not income of the insured parents, but rather escrow funds the mother is entrusted with to spend for the welfare of her children. Certainly, it was held, it is not income of the father, who does not receive the money, neither into his possession nor for his enjoyment. The Court added that “the legislator’s intention in allocating an allowance to children would be entirely thwarted and frustrated if the children’s allowance was deemed as income of their parents, and all types of authorities would be able to get a hold thereof and take it from the mouths of the children in order to collect payment from their parents.” (Sin Case, on p. 411; see also LCA 3101/00 Betiashvili v. The Competent Authority [2002] IsrLC 57(1) 183). Indeed, a ruling of the National Labor Court held that the person who is entitled to the child allowance is the insured parent and not the child directly, and that the parent does not hold the money in trust for his child in the legal sense. (Azulay Case, Paragraphs 4-5 of the opinion of Justice V. Wirth Livne). However, this Court has not ruled on the issue, and the petition filed on the opinion in the Azulay Case was dismissed in limine because it was theoretical, and did not state a position on the merits of the issue. (HCJ 967/07 Jane Doe v. The National Insurance Institute (April 29, 2007)). In addition, it should be noted that in the Azulay Case, a minority opinion was voiced by Deputy President E. Barak-Ussoskin. This position, which was based, inter alia, on the said judgments of this Court, asserted that the right to child allowance is granted to the child and not to the parent, and that the parent receives the allowance in trust in order to care for the welfare of the child.

In any event, I do not believe that we are required to decide this issue, but we should rather assume that the legislator, when determining the child allowances, had in mind the welfare and best interests of the children.

The Vaccination Program

26.The issue at bar mainly concerns the conditioning of part of the child allowance on vaccinating the child for whom the allowance is paid. Therefore, the purpose of the Vaccination Program in Israel should be briefly stated. As the respondents clarified, the professional position of the Ministry of Health is that vaccines are a means of utmost importance for protection of the health of children and of the general public. The vaccine system currently in place protects the population in general and children in particular from serious morbidity. The importance of the vaccines is not expressed merely in vaccinating children, but also in ensuring the vaccine is timely given, in accordance with the recommendations of the Ministry of Health. This was addressed in the past by Deputy President E. Rivlin:

“There is no doubt that compliance with the vaccination dates is of great importance, and it is the duty of the persons charged with it to ensure and verify that there is no unjustified delay in vaccinating infants. The schedule set for vaccinating infants was set for good reason, and it obviously must be adhered to with the utmost attention and the strictness required in such a matter.” (CA 9628/07 Shalom v. Clalit Health Services, Paragraph 6 (September 2, 2009)).

27.The Ministry of Health deems the vaccination of children to be of great importance on two levels: the first level concerns the protection of the health of the individual child receiving the vaccine. The respondents state that a vaccine is the only way to ensure protection of the individual from the diseases against which the children are vaccinated. They explain that in a world that has become a type of “global village,” there is a risk that any immigrant or tourist will bring with him diseases that are not currently found in Israel, and which may infect those who are not immunized against such diseases. The second level concerns what is termed “herd immunity.” Herd immunity protects individuals in the public who have not been vaccinated for justified reasons, such as newborn babies who have yet to reach the age in which the vaccine is administered, the elderly person whose immune system is not functioning properly, or other persons at risk with respect to their immune systems, such as people suffering from serious illnesses or undergoing chemotherapy. In addition, herd immunity protects the small percentages of individuals who were vaccinated but are not reacting to the vaccine. Herd immunity is only achieved when there is a high coverage rate of vaccinated individuals in society and so long it is maintained.

Herd immunity creates a unique characteristic with respect to the issue of children’s vaccination, since the individual decision of each parent as to whether or not to vaccinate his children has an effect on the entire public. In addition, a “free rider” problem may develop in this regard, whereby a parent will choose not to vaccinate his children on the assumption that herd immunity will protect them from the diseases against which the vaccines protect. A wide-scale phenomenon of free riders could harm the herd immunity and thus harm the general public.

28.It appears that the majority of the petitioners also recognize the importance of vaccines and their significant contribution to public health; the main dispute is about what measures should be taken in order to encourage the vaccination of children. However, the petitioners in HCJ 908/11 challenge this starting point, arguing that the effectiveness of vaccines and the severity of their side effects are in dispute. It appears to me that this position cannot change the said starting point. It seems that the position of the Ministry of Health regarding the importance of vaccines is a prevalent and very common position in Israel and around the world. (See e.g. Avraham Sahar “Opportunity Makes the Thief...” Beliefs, Science and the Vaccine Victims’ Insurance Law, 5750-1989” Medicine and Law 36 on p. 105 (2007) (hereinafter, “Sahar”); Bilhah Kahana “The Vaccine Victims’ Insurance Law – A Law that is Not Enforced” Medicine and Law 38 on p. 14 (2008)). Insofar as we are aware, to date no causal link has been scientifically proven between vaccines and neurological or other damages. However, medical science recognizes that vaccines, or to be precise, the fever caused in some children as a result of vaccination, can create a risk and cause damage to a very small percentage of children with a certain genetic predisposition who receive a vaccine. Nonetheless, it is unclear whether, even if the vaccine had not been given, damage could have been caused as a result of another fever-inducing disease. (See Tali Sagi “Comments on the Article “Opportunity Makes the Thief - Beliefs, Science and the Vaccine Victims’ Insurance Law”” Medicine and Law 36 on p. 116 (2007)). In addition, there is broad consensus that even if there is a certain risk, it is very small, and that the benefit resulting from the vaccine is much greater:

“The risk entailed in receiving the vaccine, even though it does in principle exist, is very distant and rare, while the benefit and necessity of the vaccine to the health of the child are not doubted” (CA 470/87 Eltori v. The State of Israel – The Ministry of Health [1993] IsrSC 47(4) 146, 153).

Examples from Israel and around the world can illustrate this risk. When the public immunization level declines, usually due to fears raised by vaccine opponents, there are reports of outbreaks of epidemics which were ostensibly extinct, causing severe injuries. This was the case in Britain after the rate of persons immunized against pertussis dropped to approximately 30% in early 1980; a pertussis epidemic broke out leading to the hospitalization of approximately 5,000 children and the death of twenty-eight children (Sahar, on p. 106). In Israel, an outbreak of measles occurred in 2003 among a population that did not habitually vaccinate. Within two weeks, sixty children fell ill, out of whom one child passed away from the disease. Another outbreak occurred in 2007-2008 after a sick tourist arrived from England. The disease spread among a non-immunized population and within several months 1,452 cases of measles were reported.

29.It should further be noted that the case law holds that the administrative authority, and certainly the legislative authority, may rely on expert opinion, even if there is a contradicting opinion, and the court will honor the authority’s decision between the contradicting opinions. “When a law is based on a matter within professional expertise, the fact that there are contradicting opinions on such issue does not justify striking it down.” (HCJ 6976/04 The “Let the Animals Live” Association v. The Minister of Agriculture and Rural Development, Paragraph 11 (September 1, 2005) (hereinafter, “LAL Case”); see also HCJ 1554/95 Gilat Supporters v. The Minister of Education and Culture [1996] IsrSC 50(3) 2, 19; HCJ 4769/95 Menachem v. The Minister of Transport [2002] 57(1) 235, 271 (hereinafter, “Menachem Case”)). Understandably, had there been a well-established and prevalent position among medical experts believing that the risks from the vaccines exceed the benefit, it would have affected the constitutional analysis of the Amendment being examined before us. However, this is not the factual situation. As I stated, the prevalent and recognized position worldwide is that the benefit derived from the vaccines immeasurably exceeds the risk inherent therein. (See e.g. . This position has opponents, but it appears that they are the relatively marginal minority. Therefore, this will be the starting point for the continuation of our discussion.

The MMRV Vaccine

30.As mentioned above, according to the Amendment to the National Insurance Law, the Director General of the Ministry of Health is required to publish a program of the vaccinations required. The child allowance will be reduced only for parents who have not vaccinated their children with the vaccines included in the program published. This program currently includes only one vaccine, the MMRV, also known as the quadrivalent vaccine, which is given to infants at the age of one year in a single dosage. Another dose is given to children in first grade, but this dose is not included in the Vaccination Program published. It is therefore appropriate to provide some details on this vaccine.

31.The quadrivalent vaccine, as its name suggests, protects against four diseases: measles, mumps, rubella and chicken pox. The vaccine is common in many countries worldwide. All European countries recommend a vaccine against measles, mumps and rubella. The vaccine against chicken pox is recommended in the United States, Australia, Canada, Germany, Greece, Latvia, and Japan.

32.Measles is a serious childhood disease. The disease may cause serious complications in the respiratory airways and in the nervous system. Approximately one third of patients will develop complications such as otitis media, diarrhea and keratitis. Rarer complications are pneumonia and encephalitis (one in 1000 cases). A very rare complication of the disease, which may appear approximately ten years after its manifestation, is a complication that manifests as a degenerative disease of the brain called subacute sclerosing panencephalitis and which causes serious and irreversible damage to the central nervous system, including mental deterioration and seizures. The risk of complications is higher among children under the age of five, among adults over the age of twenty, and among patients with a suppressed immune system. 1-3 children of every 1,000 patients die from the disease. Worldwide, measles is responsible for approximately twenty-one percent of mortality resulting from diseases preventable by vaccines. Measles is highly contagious, and a person who is not immunized and is exposed to a patient has a general risk of 90% of being infected. The vaccine against measles is very effective. 95% of children who receive the vaccine at the age of one develop antibodies against the disease, which give them long-term immunity. A few lose the protection against the disease after several years, and to address that, a repeat vaccine was introduced in Israel to be administered at school age. It should further be noted that in outbreaks of measles in Israel, the highest morbidity rates were of infants below the age of one, as they were not vaccinated against the disease.

33.Measles manifests in swelling in the salivary glands and in the glands beneath the ear lobe, sore throat, high fever, headaches and weakness. In approximately ten percent of patients, meningitis may develop, which manifests in vomiting and headaches. A common complication among adults is orchitis; more rare complications are an infection in the joints, thyroid, kidney, cardiac muscle, pancreas and ovary, deafness and other complications in the nervous system. Manifestation of the disease in a pregnant woman in the first trimester causes an increased rate of spontaneous miscarriage. The disease is more severe among adults and the rare mortality from the disease is mainly among this group. The vaccine against the disease is very effective. 80% of persons vaccinated with a single dosage are protected, and 90% are protected after receiving 2 doses.

34.Rubella may, in certain cases, cause complications such as encephalitis, which is more common in adults, and hemorrhaging due to a decline in the number of platelets, a phenomenon common mainly in children. Among women in the first months of pregnancy, rubella may harm the developing fetus and cause the death of the fetus or severe birth defects, which include eye defects that cause blindness, heart defects, deafness, defects in the nervous system which cause behavior disorders, and mental disability.

35.Chicken pox manifests in a high fever accompanied by a rash with blisters. Complications of the disease are pneumonia and encephalitis, a severe bacterial infection of the skin, a decline in the number of platelets and in rare cases hemorrhaging, kidney dysfunction, and even death. The disease is more severe among adolescents and adults, and is especially serious among persons with suppressed immunity who cannot receive the vaccine. Cases of death from chicken pox have been described among children treated with corticosteroids, which are frequently given as a treatment for other diseases (such as asthma). Contracting chicken pox in the first twenty weeks of pregnancy may cause birth defects in the eyes, limbs, skin and nervous system. Contracting the disease shortly after birth is especially dangerous for a newborn. Patients who have recovered carry the “varicella-zoster” virus in a dormant state in their body. This virus may, years later, or when the immune system is weakened, cause an outbreak of a disease called “herpes zoster.” This disease causes severe local pain which may last for a long time. The vaccine results in the development of protection in 85% of the persons vaccinated at the age of one year. The vaccine protects against a serious disease with complications, and giving two doses leads to a very high protection of 97%, to a point where it is impossible to identify chicken pox.

36.With respect to the MMRV vaccine, the vaccination coverage in Israel among the general population was on average 90% between the years 2006 and 2009. It should be noted that according to what we have been told, the position of professionals is that to achieve “herd immunity” with the MMRV vaccine, the vaccination coverage required in the population is approximately 95%.

Now that the factual foundation has been laid, the legal aspect shall be built upon it.

Examination of the Constitutionality of the Amendment to the National Insurance Law

37.We should first reiterate what is known: that the Court will not be quick to intervene and repeal statutory provisions enacted by parliament. In this regard, the court must exercise judicial restraint, caution and reserve:

“Indeed, striking down a law or part of it is a serious matter, not to be taken lightly by a judge. Striking down secondary legislation for conflicting with a statute is not the same as striking down primary legislation for conflicting with a basic law. By striking down secondary legislation, the judge gives expression to the desire of the legislator. By striking down primary legislation, the judge frustrates the desire of the legislator. The justification is that the legislator is subject to supra-statutory constitutional provisions, which he himself set. (See A. Barak “Judicial Review of the Constitutionality of a Statute”, Law and Governance C 403 (5756)). Nevertheless, considerable judicial caution is required.” (LAL Case, Paragraph 9).

However, I do not accept the respondents’ position that the judicial restraint required in this case is similar to that required for constitutional review in areas of economy and finance. As is known, case law mandates that this Court exercise particular restraint in areas of economy and finance, which involve far-reaching social and economic aspects. It has been held that the authorities entrusted with the economic policy should be allowed broad leeway “as the entities in charge of determining the comprehensive policy, and bearing the public and national responsibility for the State’s economy and finance.” (Menachem Case, on p. 263; see also HCJ 8803/06 Ganei Chuga Ltd. v. The Minister of Finance, comments of Justice Procaccia (April 1, 2007); Lahav Case, Paragraph 63). In the case at bar, although the Amendment to the National Insurance Law is part of the Arrangements Law, it is not a law whose essence is budgetary or economic. Although this is a socio-public matter, this is not what was meant by the special judicial restraint mentioned. As the respondents emphasized, the purpose of the Amendment is not economic and is not monetary savings. On the contrary, the purpose of the Amendment is to ensure that no child loses his allowance, since the purpose is that all children be vaccinated. Hence, I do not believe that the said case law applies to this matter. It is, however, clear the judicial restraint and reserve required by the mere constitutional review of an act of the Knesset also apply to the case before us.

38.As is known, constitutional review is divided into three stages. At the first stage, it is necessary to examine whether the law in question violates constitutional rights enshrined in the basic laws, and in the case before us, Basic Law: Human Dignity and Liberty (hereinafter, “Basic Law”). If the answer is negative, the constitutional review ends and it should be held that the law in question is constitutional. If the answer is affirmative, it is necessary to proceed to the second stage at which we examine whether the violation satisfied the conditions set in the Limitation Clause in Section 8 of the Basic Law. In order for the law to be declared constitutional, the violation must satisfy all of the conditions set forth in the Limitation Clause. If one of the conditions is not met, it is necessary to proceed to the third stage, which is the stage of the remedy for the unlawful violation. (HCJ 2605/05 Human Rights Unit v. The Minister of Finance, Paragraph 16 of the opinion of President Beinisch (November 19, 2009); HCJ 10662/04 Hassan v. The National Insurance Institute, Paragraph 24 of the opinion of President Beinisch (February 28, 2012) (hereinafter, “Hassan Case”); Lahav Case, Paragraph 75). As held in the Hassan Case, this method of constitutional analysis will be identical both when we are concerned with civil and political rights and when we are concerned with social and economic rights. (Hassan Case, Paragraph 31 of the opinion of President Beinisch).

We shall begin, therefore, at the first stage of constitutional review and examine whether, as the petitioners claim, the Amendment to the National Insurance Law indeed violates rights enshrined in Basic Law. In this framework, we will specify three principal rights that the petitioners mentioned in their pleadings: the right to a dignified life or the right to social security, the right to autonomy, and the right to equality.

The Violated Rights: The Right to a Dignified Life

39.Nowadays, no one disputes that the human dignity enshrined in Basic Law also includes the right to a minimal dignified existence, including both the positive and negative aspects of the right. This right means that “a person will be guaranteed the minimum of material resources that will allow him to sustain himself in the society in which he lives[.]” (HCJ 366/03 Commitment to Peace and Social Justice v. The Minister of Finance [2005] IsrSC 60(3) 464, 482 (hereinafter, “CPSJ Case”)). It was held that this right is at the core and nucleus of human dignity:

“Living in starvation and without shelter, while constantly searching for handouts, is not a dignified life. A minimal dignified existence is a condition not only to preserving and protecting human dignity, but also to exercising other human rights. There is no poetry in a life of poverty and deprivation. Without minimum material conditions, a person lacks the ability to create, aspire, make his choices and realize his freedoms.” (Hassan Case, Paragraph 35 of the opinion of President Beinisch).

It was further held that the right to a dignified life is not a right derived from the right to human dignity, but a right that constitutes a tangible manifestation of human dignity. (Hassan Case, Paragraph 36 of the opinion of President Beinisch; CPSJ Case, on p. 479).

40.The right to a dignified life is protected by the State using a variety of measures, systems and arrangements, and there is no doubt that the welfare legislation and allowances of the National Insurance Institute constitute a considerable and significant part of the realization of this right. The child allowances also constitute an additional tool to realize the right, since families living in poverty due to, inter alia, the expenses of raising children, can gain much assistance from these allowances and rise above the threshold that enables a dignified life. It should indeed be kept in mind that child allowances are universal allowances given according to the make-up of the family, and are not dependent on the family income. Therefore, the object of realizing a dignified life will not always be relevant to these allowances, compared to income assurance, for example, which is an allowance whose main purpose is to create a lasting safety net for families that need it. (Hassan Case, Paragraph 44 of the opinion of President Beinisch). However, there might be cases in which families on the edge of the last safety net will fall below it if they are denied the child allowance. The assumption is that “the gamut of the welfare arrangements granted in Israel provide the ‘basket’ required for a minimal dignified life.” (Hassan Case, Paragraph 46 of the opinion of President Beinisch).

41.Despite the aforesaid, I believe that in the case at bar, the petitioners have not presented a sufficient factual foundation to prove the existence of a violation of the right to a dignified life resulting from the Amendment to the National Insurance Law. As is known, a person who claims a violation of a constitutional right bears the burden of proving such violation. (Aharon Barak, Interpretation in Law – Constitutional Interpretation 374 (Vol. 3, 1994)). The petitioners bear the burden of demonstrating that after examination of the range of services provided to the family, reduction of the child allowances will cause harm to the dignity of families whose material living conditions will fall short. At the very least, and under the lenient approach, they should have presented individual cases that indicated the alleged harm; then, the burden of proof would have shifted to the State. (See the comments of President Beinisch in the CPSJ Case, on p. 492-493; HCJ 4124/00 Yekutieli v. The Minister of Religious Affairs, Paragraph 48 of the opinion of President Beinisch (June 14, 2010) (hereinafter, “Yekutieli Case”)). In the CPSJ Case, it was held that the mere reduction, even if it is a significant reduction, in income assurance allowances, does not in itself  prove a violation of the right to a dignified life, and it is necessary to examine the gamut of services and arrangements granted as a safety net in the State of Israel. “The examination is always concrete and consequential.” (CPSJ Case, Paragraph 19 of the opinion of President Barak; see also PHR Case, on p. 334; HCJ 10541/09 Yuvalim S.D.I. Ltd. v. The Israeli Government (January 5, 2012)).

42.The above is all the more relevant to the case before us. First, the petitioners did not point to any data proving their claim regarding the violation of the right to a dignified life of families to whom the Amendment will apply. The reduction in the child allowance cannot, in and of itself, establish a foundation for proving the violation. “The right to dignity, as well as the right to a dignified life, is not the right to a monthly allowance in a certain amount.” (CPSJ Case, on p. 485).

Second, this case concerns child allowances, distinguishable from income assurance allowances. As I stated, while the central purpose of the latter is to create a safety net for the realization of the right to a dignified life, this is merely one of the purposes of the child allowance. Therefore, while there are grounds to assume that denying income assurance allowance for reasons other than the existence of different sources of income violates, under the appropriate circumstances, the right to a dignified human existence of the person whose allowance was denied (see Hassan Case, Paragraph 46 of the opinion of President Beinisch), it is difficult to make a similar assumption with respect to the denial of the child allowances, and certainly with respect to their reduction. The case of child allowances therefore requires even more data-based proof of the violation of the right to a dignified life.

Third, and perhaps most important, most of the reduction in the child allowances for families who do not vaccinate their children is made after an increase of a similar amount of the child allowance, as it was prior to the Amendment. The Amendment increased the child allowance for the second, third and fourth child by NIS 100 per month for each child. At the same time, the reduction due to non-vaccination is NIS 100 per month for each child. It should be emphasized that for a family with more than three children the reduction is capped by the Amendment at NIS 300 per month, such that the reduction will be paralleled by a NIS 300 per month increase of the child allowances for that family (for the second, third and fourth children). The increase was also taken into account for families with two or three children, because for these families the maximum reduction will be NIS 100 and NIS 200 per month, respectively, equal to the increase in the child allowances that these families will receive. The only difficulty pertains to a family with a single child. In such a family, a reduction may be made in the sum of NIS 100 per month if the child is not vaccinated with the MMRV vaccine without such family receiving an increase in the child allowance to which the family is entitled. However, even with respect to such a family, it cannot be said that a violation of the right to a dignified life has been proven. As said above, data showing such a violation for a family of this type was not presented. In the absence of data, it may also be assumed that families with one child are less at risk of deprivation compared to large families. (See data thereon in the article of Yoram Margalioth “Child Allowances”, the Berenson Book on 733, 747-748 (5760)). Finally, weight should be given to the fact that even for such a family, the child allowance to which the family is entitled is merely reduced and not fully denied. In any event, “a deduction from a person’s income . . . is not the same as not granting a benefit.” (Betzedek Case, on p. 409). Where the main reduction is made following an increase of a similar amount in the allowance, it should be deemed as not granting a benefit, not as a deduction from a person’s income.

The conclusion is therefore that the Amendment does not violate the right to a dignified life.

43.I should note that insofar as the petitioners claim a violation of the right to social security, as distinguished from the right to a minimal dignified existence, they did not provide any support for its existence as a constitutional right, and made no argument as to the content of such right as distinguished from the right to a minimal dignified existence. This Court has not yet discussed the status and scope of the right to social security in Israeli law. (See HCJ 5578/02 Manor v. The Minister of Finance [2004] IsrSC 59(1) 729, 737 (hereinafter, the “Manor Case”); PHR Case, on p. 333). The petitioners did not expand on this issue, and it appears that some of them did not specify the differences between the two rights at all. Hence, I saw no room to discuss the issue of violation of this right separately. This is also the case with respect to the claim of violation of the property right. The question of whether the constitutional right to property applies to child allowances has not yet been decided in the judgments of this Court. (See the comments of Justices (formerly) Grunis and Rivlin in the Manor Case). The petitioners in HCJ 7245/10 raise this claim in a laconic and unsubstantiated manner, and I therefore also did not expand on this claim. In addition, I should note that the contractual assertion raised by the petitioners should be dismissed. No link is required between the insurance contributions collected by the National Insurance Institute and the allowances paid to entitled persons in respect of the various grounds for entitlement. (Lahav Case, Paragraph 57). Therefore, no harm is caused to the expectation of parents who pay national insurance contributions and whose child allowance will be reduced as a result of not vaccinating their children and a fortiori when the reduction in the child allowances almost fully corresponds to the increase in the amount of the allowance by the Amendment.

The Violated Rights – The Right to Autonomy and Parental Autonomy

44.The petitioners in HCJ 908/11 raised, at the center of their arguments, the violation of the right to autonomy, the right to parental autonomy and the right to parenthood. “One of the most important basic values is the value of the individual’s freedom of will” (Aharon Barak, Interpretation in Law – General Theory of Interpretation, 301 (vol. 1, Ed. 3, 1998)). This value of autonomy constitutes part of human dignity and is constitutionally protected by the Basic Law (HCJ 4330/93 Ganam v. The Israel Bar Association [1996] IsrSC 50(4) 221, 231 (hereinafter, the “Ganam Case”)). The meaning of the right to autonomy is the right of every individual to decide on his actions and wishes, according to his choices, and to act according to such choices:

 A person’s right to shape his or her life and fate encompasses all the central aspects of his or her life: place of residence, occupation, the people with whom he or she lives, and the content of his or her beliefs. It is a central existential component of the life of every individual in society. It expresses recognition of the value of every individual as a world unto him or herself. It is essential for the self-determination of every individual, in the sense that the entirety of an individual’s choices constitutes his or her personality and life.

(CA 2781/93 Ali Daka v. Haifa “Carmel” Hospital [1999] IsrSC 53(4) 526, 570 (hereinafter, the “Ali Daka Case”). The right to autonomy is a framework right from which many other rights are derived. (See Ganam Case; HCJ 7357/95 Barki Feta Humphries (Israel) Ltd. v. State of Israel [1996] 50(2) 769; see also Ali Daka Case, on p. 572). The importance of the right to autonomy was recognized especially in the context of giving or avoiding medical treatment, and it gives rise to a separate cause of action which entitles the claimant to damages. (Ali Daka Case).

45.One of the aspects of the right to autonomy is the right to parental autonomy. Parents are the natural guardians of their children. (Section 14 of the Legal Capacity and Guardianship Law, 5722-1962 (hereinafter, the “Legal Capacity Law”)). As such, they have the “obligation and the right to care for the needs of the minor, including his education, studies, training for work, occupation, and employment, as well as preserving, managing and developing his assets; also attached to this right is the permission to have custody of the minor and authority to represent him and to determine his place of residence.” (Section 15 of the Legal Capacity Law). The parents are obligated to ensure the “best interests of the minor [in the way that] devoted parents would act under the circumstances.” (Section 17 of the Legal Capacity Law). This Court’s rulings have recognized a very broad autonomy of parents in raising their children. Several reasons are presented as underlying this recognition. First, this recognition derives from the natural connection between a child and his parents. Second, it is commonly assumed that the parents, who are in charge of the family unit and know it from every aspect, will make the best decisions for the children. The supplementary assumption is that outsiders will not always be able to make the best decisions for the minor because the decisions often entail emotional aspects. Third, often these are issues on which there is no social consensus. Finally, the fact that the parents are those who will need to cope with the practical repercussions of the decision is taken into account. (LCA 5587/97 The Attorney General v. John Doe – Minor, PDI [1997] IsrSC 51(4) 830, 860 (1997)). However, it should be emphasized that the autonomy of parents vis-à-vis their children is not absolute and is limited by the principles of the child’s best interests and his rights.

46.Nevertheless, I do not believe that any harm to autonomy or parental autonomy will be recognized as constitutional harm which requires compliance with the terms and conditions of the limitation clause. Obviously, the closer the harm is to the core of the right, the greater the inclination to recognize it as constitutional violation. (See the comments of Deputy President Rivlin in CA 8126/07 The Estate of the Late Bruria Tzvi v. Bikur Holim Hospital (January 3, 2010)). “Overexpansion of the extent of the constitutional right should be avoided. Sweeping expansion of the limits of the constitutional right at the first stage, and “automatically” proceeding to the tests of the limitation clause in any case in which it is argued that legislation violates that right, may lead, in the overall balance, to an erosion of the protection granted by the basic laws.” (Hassan Case, comments of Justice U. Vogelman). It appears to me that two parameters may be examined to determine whether or not the violation will be recognized as a constitutional violation of the right to autonomy. First, the essence of the choice denied the individual should be examined. The more the harm to autonomy pertains to aspects concerning personal expression and self-realization of the person, the greater the inclination to deem it as a violation of a constitutional right. Denying a citizen of the State the possibility to marry the love of his life is not the same as denying another the option to choose the type of facilities that will be installed in the public park next to his home. A second parameter that should be examined in my opinion is the extent of coercion and denial of will. A prohibition that entails a criminal sanction is different from the denial of a minor financial benefit.

47.In the case at bar, I am not convinced that a violation of the constitutional right to autonomy or to parental autonomy has occurred. Even if I assume that the first parameter regarding the essence of the choice denied is met, the second parameter regarding the extent of the coercion is not fulfilled. The Amendment does not create an obligation to vaccinate children, nor does it impose a criminal sanction on non-vaccination. The monetary reduction that accompanies non-vaccination of children is not high and can range between NIS 100 and NIS 300 per month at most. Even if I do not disregard the fact that for some families this amount is significant, as mentioned above, it is, for the most part, a reduction of the same amount that was added to the child allowances in the Amendment to the National Insurance Law. Hence, I do not believe that the reduction in the Amendment may be deemed to violate the right to autonomy in its constitutional sense.

The Violated Rights: The Right of Equality

48.Much has already been said in the rulings of this Court on the right of equality, its status and importance, and it has been widely extolled:

The principle of equality is one of the building blocks of the law and constitutes the backbone and ‘life-blood’ of our entire constitutional regime. (Justice Landau in HCJ 98/69 Bergman v. The Minister of Finance [1969] IsrSC 23(1) 693, 698; HCJ 4805/07 Israel Religious Action Center of the Israel Movement for Progressive Judaism v. The Ministry of Education, Section 70 of the opinion of Justice A. Procaccia (July 27, 2008) (hereinafter, “IRAC Case”); HCJ 11956/05 Bashara v. The Minister of Construction and Housing (December 13, 2006)). The right of equality was recognized in our legal system in the early days of the State, when it received a place of honor in the Proclamation of Independence, and it was further established in various laws that were enacted by the Knesset over the years, and in the case law of this Court, which deemed it a ‘regal right’ and a principle which is ‘high above the other principles’.” (HCJ 2671/98 The Israel Women’s Network v. The Minister of Labor and Social Welfare [1998] 52(3) 630, 650; HCJ 2911/05 Elchanati v. The Minister of Finance, Section 17 of the opinion of Justice E. Hayut (June 15, 2008)); APA 4515/08 State of Israel v. Neeman, Paragraph 17 of my opinion (October 6, 2009) (hereinafter, “Neeman Case”)).

And elsewhere I stated:

            “It appears that no one disputes that equality is the keystone of a democratic regime and a central aspect of the relations between the individual and the State. No society can be maintained in a democratic state without equality, which is one of the derivatives of justice and fairness. Equality is a synonym for justice and fairness, as it appears to members of society in a certain period. Equality leads to justice, equality whose path is fairness. (See HCJ 7111/95 Federation of Local Authorities in Israel v. The Knesset [1996] IsrSC 50(3) 485, 502)” (HCJ 6298/07 Rasler v. The Israeli Knesset, Paragraph 18 of my opinion (February 21, 2012)).

The importance of the right of equality has been recognized and emphasized numerous times with respect to the distribution of budgets or resources of the State. “The resources of the State, whether land or money, as well as other resources, belong to all citizens, and all citizens are entitled to benefit from them according to the principle of equality, without discrimination on the basis of religion, race, sex or any other prohibited consideration.” (HCJ 1113/99 Adalah – The Legal Center for Arab Minority Rights in Israel v. The Minister for Religious Affairs [2000] IsrSC 54(2) 164, 170).

49.The right of equality, which creates the duty not to discriminate, does not mean equal treatment for everyone. It is a complex right which results from the fact that the common concept of equality seeks to give equal treatment for equals and unequal treatment for unequals. Equality does not require things to be identical. (HCJ 6427/02 The Movement for Quality Government in Israel v. The Knesset [2006] IsrSC 61 (1) 619, 677 (hereinafter, the “MQG Case”). Not every difference between people justifies distinguishing between them, but only a difference that is relevant to the matter in question. (HCJ 200/83 Veted v. The Minister of Finance [1984] IsrSC 38(3) 113, 119 (hereinafter, the “Veted Case”)). “The difference between wrongful discrimination and a permitted distinction depends, as is known, on whether a relevant difference exists between the groups that received different treatment from the authority.” (HCJ 6758/01 Lifshitz v. The Minister of Defense [2005] IsrSC 59(5) 258, 269; Yekutiel Case, Paragraph 35, 37 of the opinion of President Beinisch). In order to determine that the right of equality has been violated, it is necessary to examine who is the group of equals for the purpose of the matter at hand. The group of equals will be decided according to the purpose of the examined norm and the nature of the matter and the circumstances, as well as in accordance with common social conceptions. (HCJ 8300/02 Nasser v. The Israeli Government, Paragraph 37 (May 22, 2012) (hereinafter, the “Nasser Case”; Neeman Case, Paragraph 18 of my judgment; MQG Case, on p. 677; HCJ 1213/10 Nir v. The Speaker of the Knesset, Paragraph 14 of the opinion of President Beinisch (February 23, 2012) (hereinafter, the “Nir Case”; HCJ 4906/98 “Free Nation” for Freedom of Religion, Conscience, Education & Culture v. The Ministry of Construction and Housing [2000] IsrSC 54(2) 503, 513); Veted Case, on p. 119, 122; Yekutieli Case, Paragraph 36 of the opinion of President Beinisch).

In the case before us, it appears to me that it is possible to say that the right of equality   has been violated. As described above, child allowances are universal allowances that are granted to every family according to its composition. Their purpose is to assist in financing the expenses of raising children, and to prevent the family in general and the children in particular from becoming impoverished. Therefore, adding a condition to the receipt of the allowance that is dependent on the vaccination of the family’s children is foreign both to the structure of the allowance and to its purposes. Indeed, the child allowance serves the best interests and welfare of the children, and the assumption is that vaccinating the children is also in their best interests and protects their health. It is still a stretch to say that the condition is naturally integrated with this allowance. The main and natural condition to receiving the allowance is the number of children. Additions and conditions beyond that (apart from conditions such as residency, and without going into the issue of conditioning the allowances on income) would be foreign to the allowance, and therefore violate the right of equality. The fact that the allowances are intended for the best interests of the children also has repercussions for the determination that the right to equality has been violated. In fact, children whose parents decide not to vaccinate them are harmed twice, both by their non-vaccination and by the decision to reduce the allowances intended for their benefit. The equality group, therefore, is all parents who are insured pursuant to the National Insurance Law.

50.The petitioners argue that in principle, the national insurance allowances, the main purpose of which is social-welfare, should not be made contingent upon conditions intended to regulate behavior and achieve other social objectives that do not have a direct and close connection to the allowance granted. They emphasized that the allowances are not a prize for proper behavior. They also raise an understandable concern about the expansion of the conditions to the point of absurdity. Will it be possible to condition the granting of child allowances on the parents not smoking? On maintaining proper nutrition? On installing bars on home windows? Where will the line be drawn between behavior that ought to be encouraged through the conditioning of child allowance and that for which conditioning will not be the correct and constitutional tool? (See the comments of Members of the Knesset at the Finance Committee’s discussion on June 24, 2009).

51.“The main purpose of social insurance is to realize the State’s obligation to ensure a minimum standard of living for all of its residents, so that no person falls below the threshold of a dignified life. Social insurance, and the statutory frameworks intended to realize it, are an important component in realizing the idea of a society based on foundations of justice, equality and social care for the needy.” (Lahav Case, Paragraph 44; Johnny Gal

52.However, our work does not end here. Since we are concerned with primary legislation of the Knesset, it is necessary to examine the issue and ask whether the violation of equality in this case is a violation in the constitutional sense, i.e. whether it amounts to a violation of the right to human dignity enshrined in the Basic Law. “The Knesset has broad discretion in the task of legislation, and there are situations in which broader protection may be afforded against a violation of equality caused by an administrative authority than to one inflicted by the legislator.” (Nasser Case, Paragraph 43). In the MQG Case, an interim model was adopted for interpretation of the term human dignity in the Basic Law:

The interim model does not limit human dignity merely to humiliation and contempt, but it also does not expand it to all human rights. According to this model, human dignity includes those aspects of human dignity which find, in various constitutions, manifestation in special human rights, and are characterized by having, according to our perception, a pertinent and close connection to human dignity (whether at its core or in its margins). According to this approach, human dignity may also include discrimination that is not humiliating, provided that it is closely related to human dignity as expressing the individual’s autonomy of will, freedom of choice and freedom of action, and other such aspects of human dignity as a constitutional right.

(MQG Case, on p. 687). Not every violation of equality, therefore, amounts to a constitutional violation. In order to prove a violation of the constitutional equality, it is necessary to demonstrate that the violation of equality has a pertinent and close connection to human dignity (whether at its core or in its margins). (See also Nir Case, Paragraph 11 of the opinion of President Beinisch; HCJ 9722/04 Polgat Jeans Ltd. v. The Israeli Government (December 7, 2006); HCJ 8487/03 IDF Disabled Veterans Organization v. The Minister of Defense [2006] IsrSC 62(1) 296, Paragraph 23; Nasser Case, Paragraph 44; Lahav Case, Paragraph 76).

53.It appears that the discrimination in this case violates the constitutional right of equality as part of human dignity. The fact that a small group of residents is excluded from the group of all residents with children because of its choice not to vaccinate its children violates the human dignity of this group. The gap created between the two groups creates a sense of discrimination of the latter group, and has a close connection to human dignity. (See, similarly, Lahav Case, Paragraph 92). The violation is comprised of both the lack of respect for the belief or choice of this group not to vaccinate its children for various reasons, and the sense that other parents, whose actions may harm the best interests of their children or the best interests of the public in other ways, continue to receive full child allowances. The sense is that the legislator focused specifically on this group and on this social objective, which is the only one for which a condition is imposed on the child allowances, harming the dignity of the chosen group. (See Nasser Case). The consequence that this reduction has on the distinction between groups of children also contributes to the conclusion that the right of equality has been constitutionally violated.

However, it appears that there is no need to rule on this issue, in light of my conclusion that the above violation satisfies the requirements of the limitation clause. I will proceed, therefore, to examine the violation through the lens of the limitation clause in Basic Law.: Human Dignity and Liberty.

 

The Limitation Clause

54.It is well known that the right of equality, like other rights, is not an absolute right, and as such it requires a balancing with other rights and interests relevant to the issue in question. This balance is formed in the limitation clause set forth in Section 8 of Basic Law: Human Dignity and Liberty:

There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required or by regulation enacted by virtue of express authorization in such law.

President Barak stated the importance of the limitation clause in the MQG Case:

This provision plays a central role in our constitutional structure. It is the foothold on which the constitutional balance between the individual and the general public, between the individual and society, rests. It reflects the concept d. (See D. Hodgson, Individual Duty Within a Human Rights Discourse (2003)). It reflects the concept that the human rights set forth in Basic Law: Human Dignity and Liberty are not absolute but rather relative. They are not protected to their full scope. The limitation clause emphasizes the concept that the individual lives within the confines of society, and that the existence of society, its needs and tradition, may justify a violation of human rights. (See re. United Mizrahi Bank Case, p. 433; re. Investment Managers Bureau Case, p. 384; APA 4436/02 Ninety Balls – Restaurant, Members Club v. The City of Haifa, PDI IsrSC 58(3) 782, 803 (hereinafter, “re. Ninety Balls Case”) (re. MQG Case, on p. 691-692).

55.The limitation clause contains four conditions, only upon the cumulative fulfillment of which will the non-constitutionality of the prejudicial law be prevented. The first condition is that the violation of the human right was made in or by a law or by virtue of explicit authorization therein. The second condition is that the prejudicial law befits the values of the State of Israel. The third condition is that the prejudicial law is intended for a proper purpose. The fourth condition is that the law violates the right to an extent no greater than is required.

56.There is no dispute that the first condition is satisfied. In addition, the petitioners did not raise claims with respect to the satisfaction of the second condition. Therefore, all that remains is to examine the existence of a proper purpose and the proportionality test.

57.“The purpose of a law that violates human rights is proper if it is intended to achieve social objectives that are consistent with the values of the State in general, and exhibit sensitivity to the place of human rights in the overall social fabric.” (MQG Case, on p. 697). It was further held that the more important the right violated, and the greater the harm, the stronger the public interest needed to justify the violation. (MQG Case, on p. 698-700; Yekutieli Case, Paragraph 44 of the opinion of President Beinisch; Nir Case, Paragraph 19 of the opinion of President Beinisch; Hassan Case, Paragraph 55 of the opinion of President Beinisch). Part of the petitioners’ claims regarding the satisfaction of the proper purpose condition focuses on the violation alone and not on its purpose. In addition, the petitioners argue that the purpose of increasing the vaccination rate is extraneous to the purpose of the allowances and may create a dangerous precedent of reducing allowances on various grounds. As I stated above, I do not believe that every conditioning of allowances is prohibited, and the fear of a slippery slope is a matter for the proportionality test. It appears to me that the purpose of increasing the rate of vaccination among children is a proper purpose which promotes an important social objective of caring for public health in general and children’s health in particular. The purpose underlying the Amendment does not focus only on children that have not yet been vaccinated, but also on additional populations that may be harmed as a result of non-vaccination of such children, including newborn infants whose time to be vaccinated has yet to arrive, populations who are unable to be vaccinated for various medical reasons, a certain percentage of the population whom the vaccination does not protect, despite being vaccinated, etc. As stated above, the diseases against which the vaccines protect might cause serious complications that compromise a person’s health and in rare cases might even cause his death. In this sense, the purpose of the Amendment has a close connection to the right to health and life. Therefore, even if we say that the Amendment seriously violates an important right, the purpose of the Amendment is sufficiently strong and important to justify the violation.

58.I further add that the purpose of the Amendment also expresses the principle of mutual guarantee. A separate question is whether encouraging vaccination could be deemed as a proper purpose if we were concerned only with the best interests of the children who have not yet been vaccinated. However, the purpose does not concern only the best interests of the children who have not been vaccinated or whose parents do not intend to vaccinate them, but the best interests of a broader population, as described above. The non-vaccination of such children may have an effect not only on their health and life, but on the health and life of a broader population. The principle of mutual guarantee, alongside the said purposes, justifies deeming the purpose of the Amendment as a proper purpose. It should be noted that this principle is not extraneous to the National Insurance Law, but rather, as I already mentioned, underlies it, albeit in a different context.

The conclusion is therefore that the proper purpose condition is satisfied. All that remains is to examine is whether the violation meets the proportionality test of the limitation clause.

59.The determination that the purpose of the violating law is proper does not mean that all of the measures taken to achieve it are legitimate. The end does not always justify the means. (Yekutieli Case, Paragraph 47 of the opinion of President Beinisch). The proportionality test was created for this situation. The test is divided into three subtests, all three of which must be satisfied in order to hold that the violation is proportionate. The first subtest is the “compatibility test” or the “rational connection test”. In accordance with this test, a connection of compatibility is required between the end and the means. The second subtest is the less harmful means test. According to this test, the legislator is required to choose a measure which achieves the legislative purpose and which least violates the human right. The third subtest is the proportionality test in the narrow sense. It examines the proper relation between the benefit derived from achievement of the proper purpose and the scope of the violation of the constitutional right.

60.It appears to me that the Amendment satisfies the rational connection test. It should be noted that several means might achieve the end. In addition, there is no need to prove that the means will definitely achieve the end, and a reasonable degree of probability of achieving the end is sufficient. (MQG Case, on p. 706; Hassan Case, Paragraph 59 of the opinion of President Beinisch). It should further be emphasized that there is no requirement that the means chosen achieve the end in full, and partial achievement, not minor or negligible, of the purpose following the use of the means chosen is sufficient. (Nir Case, Paragraph 23 of the opinion of President Beinisch; Hassan Case, Paragraph 59 of the opinion of President Beinisch). Indeed, it is impossible to know for certain whether the Amendment will achieve its objective and whether the percentage of vaccinated persons will rise significantly and create “herd immunity”, or at the very least create a broader protection for the public. However, it is possible to say that there is a sufficiently high probability that such objective will be achieved. The respondents presented data regarding the success of similar programs in countries worldwide and about the support of the World Bank for such programs. (See also Gal, on p. 256-257; report of the Knesset Research and Information Center of June 23, 2009 regarding increasing and conditioning the child allowances). In addition, data was presented regarding a similar program implemented in Israel that made the receipt of maternity allowance contingent upon delivery in a hospital in order to reduce the phenomenon of home births. The respondents report that following this legislation, the number of home births in Israel decreased significantly. Past experience therefore indicates a substantial probability of achieving the objective with this measure. It should also be added that the assumption is that some parents who do not vaccinate their children are not acting based on ideological reasons, and that there is a “free rider problem” whereby parents are in no hurry to vaccinate their children and rely on the vaccination of the entire public to protect their children against outbreaks of diseases. The respondents also indicated the difficulty of late vaccination of children, which the Amendment might solve by incentivizing parents to vaccinate their infants on time. Finally, I note that after the Amendment is implemented and real data collected regarding its repercussions, it will be possible to reexamine the reality created, and it might transpire that this reality does not meet the rational connection test or another proportionality test. (See HCJ 9333/03 Kaniel v. The Israeli Government [2005] IsrSC 60(1) 277, 293).

61.The Amendment, in my mind, the second subtest, the less harmful means test. It should be kept in mind for the implementation of this test that the court does not put itself in the shoes of the legislator, and that it will intervene only when it is convinced that the expected purpose may be achieved through the use of less harmful means –

When examining the severity of the violation and whether there is a less harmful means through which it is possible to achieve the purpose of the legislation, the court does not put itself in the shoes of the legislator. The assumption underlying the test of need is that there is maneuvering space in which there may be several methods for achieving the objective of the legislation, from which the legislator can choose one method. So long as the chosen method is within this maneuvering space, the court will not intervene in the legislator’s decision. The court will be prepared to intervene in the method chosen by the legislator only where it is possible to demonstrate that the harm is not minimal, and that the purpose of the legislation may be achieved through the use of less harmful means.”

(Yekutieli Case, Paragraph 45 of the opinion of President Beinisch). Indeed, there is a range of means for achieving the purpose of encouraging vaccination. Some of these means are more harmful than the means adopted by the legislature, and therefore are irrelevant for the purpose of the test in question. This is the case with respect to criminal sanctions on anyone who fails to vaccinate his children, as proposed by some of the petitioners, and for denying school attendance for those who cannot provide confirmation of vaccination, as is done in the United States. (James G. Hodge & Lawrence O. Gostin, “School Vaccination Requirements: Historical, Social and Legal Perspectives” 90 Ky. L.J. 831 (2001-2002)). It should further be emphasized that the economic sanction used in the Amendment is very similar to the denial of a benefit, since in the majority of cases, the reduction that will be made in the child allowance of parents who have not vaccinated their children is equal to the increase in the child allowances in the same Amendment. The petitioners refer to additional means that concern informational activities and increasing accessibility to Family Health Centers. With respect to informational activities, this is certainly an appropriate means, but it is included and precedes implementation of the Amendment itself. The respondents stated that a campaign is planned for informing the population about the law, in which the importance of vaccination will also be emphasized. Obviously, the sanction of reduction of child allowances will not be used against those who are convinced by the informational activity and vaccinate their children. Therefore, the informational means is also incorporated into the means chosen. The concern, of course, is that the informational means are insufficient in view of the vaccination “market failure,” whereby, as aforesaid, a child who is not vaccinated may be protected against the outbreak of diseases due to the vaccination of the population around him, but this failure may cause the non-vaccination of a certain population, which will cause the outbreak of an epidemic therein.

62.Regarding the accessibility of the Family Health Centers, this difficulty pertains to the Bedouin population in the Negev, and mainly to the population of the unrecognized villages in the Negev. Due to this difficulty, which the respondents recognize, the implementation of the Amendment was postponed in order to make arrangements and increase the accessibility of Family Health Centers to this population. However, the steps specified in the respondents’ response are satisfactory with respect to the level of accessibility achieved and the efforts being made to further increase it. The respondents report that there are currently forty-five Family Health Centers spread throughout the southern district, twenty-five of which service the Bedouin community: thirteen centers in permanent settlements, eight portable centers for the Bedouin villages, and centers in the Jewish settlements which also service the Bedouin population. There is also a special mobile family health unit to provide vaccinations for the Bedouin population. This mobile unit travels every day through a different location in the unrecognized villages and is intended to vaccinate children of families who have not visited Family Health Centers. The unit is operated five times a week between 8:00 and 16:00. Three centers in Bedouin settlements which were closed have been reopened and a petition filed on the matter was dismissed with consent. (HCJ 10054/09). The respondents are also working to encourage hiring of male and female nurses for Family Health Centers in the south and in the Bedouin settlements. To this end, it was decided to increase the financial incentive for such personnel, to add administrative personnel and security positions for the centers, and to add positions to make the services accessible to the population that finds it difficult to come to the centers. In June 2011, an incentive plan was formed for the personnel of the Family Health Centers in the Bedouin sector in the south of Israel, including payment of an encouragement bonus, payment of a persistence bonus, reimbursement for rent in certain cases, consideration for travel time to and from work, increased overtime pay, and provision of a mobile telephone to nurses. The respondents further state that mediators are brought in to make the services culturally accessible, and their role includes providing information about the importance of early registration with a Family Health Center. A special program financed by the Ministry of Health was established at Ben-Gurion University to train nurses from the Bedouin sector. The program’s students undertake to work in the Bedouin sector upon completion of their studies.

The current data regarding vaccination of the Bedouin population in the Negev with the MMRV vaccine should also be taken into account. According to the data, the vaccination rate for this vaccine in the Bedouin population is higher than in the Jewish sector, the rate in the unrecognized villages is 90%, and in the permanent settlements 93.5%.

It therefore appears that the less harmful means for achieving the purpose of encouraging vaccination have been exhausted, and the next step on the ladder for achieving the purpose may be at the economic level, as was done in the Amendment. The second subtest is therefore also satisfied.

63.The last question that we must ask is whether we ought to go one step further on the ladder, after previous steps have not yet achieved the desired objective. This is an ideological question, which is based on principles of balance and examines the relationship between the benefit in achieving the proper purpose and the damage that will be caused by the violation of human rights. (See MQG Case, on p. 707; Hassan Case, Paragraph 69 of the opinion of President Beinisch). In my opinion, the Amendment also satisfies this test. We should not disregard the harm that will be caused to parents who do not wish to vaccinate their children, who will be discriminated against compared to the group of child allowance recipients and will either need to be satisfied with a reduced allowance or act against their will and vaccinate their children. There is also difficulty in the distinction that may be created between strong groups in the population which can allow themselves to waive part of the child allowance in order to realize their desire not to vaccinate their children and weak groups which will be forced to choose between aggravated poverty and waiving their desire not to vaccinate their children. Conversely, consideration should be given to the fact that the violation of equality in this case is not arbitrary and is not based on any suspect distinction between different sectors. In addition, the harm was limited to reduction of the child allowance, and was also limited to a maximum amount that can be reduced. Further arrangements in the Amendment, including a right of appeal, prior notice, and increasing the allowances after vaccination also support the proportionality of the violation. On the other side is the benefit, as I have already stated, that may be significant and important to the health of those children who have not yet been vaccinated, and more importantly, to the public at large. The effect of each and every individual on the public justifies a balance which harms the individual to a limited and restricted extent for the benefit of the public. It is impossible to ignore that the individual lives within society and sometimes his acts or omissions impact the society around him:

A person is not solitary individual. The person is a part of society. (HCJ 6126/94 Sanesh v. The Broadcasting Authority, on p. 833). A person’s rights are therefore his rights in an organized society; they concern the individual and his relations with others. (HCJ 5016/96 Chorev v. The Minister of Transport, on p. 41). Hence, a person’s dignity is his dignity as a part of society and not as an individual living on a desert island. (Cr.M 537/95 (hereinafter, “Cr.M Ganimat”), on p. 413; LCA 7504/95 Yassin v. The Registrar of Political Parties, on p. 64; HCJ 7015/02 Ajuri v. The Commander of the IDF Forces in the West Bank, on p. 365)” (hereinafter, the “CPSJ Case, on p. 496-497).

A balance is therefore required between the rights of the individual and the best interests of society, a balance, which in my opinion, is proportionate in the case at bar, and within the bounds of proportionality afforded to the legislator.

Conclusion

64. The constitutional examination of the Amendment to the National Insurance Law revealed that the Amendment indeed violates the right of equality enshrined in the Basic Law: Human Dignity and Liberty. However, this violation satisfies all of the terms of the limitation clause, such that a proper balance is struck with other rights and interests. Hence, the Amendment is proportionate and this Court will not intervene. I will mention that this Court does not examine what it would have done in the legislator’s shoes and what its preferences would have been in such a matter, but merely examines whether the legislator’s choice is within the boundaries of the range of proportionality available to the legislator. (See HCJ 1715/97 The Bureau of Investment Managers in Israel v. The Minister of Finance, [1997] IsrSC 51(4) 367, 386). I mentioned that most of the reduction in the child allowances will be executed simultaneously with the increase in the allowances set in the Amendment. I further noted the importance attributed to the vaccination of the children, not only for the health of the children themselves, but also for the health of the environment, society and the public. Thus, the conclusion I have reached is that the violation resulting from the Amendment satisfies the conditions of the limitation clause and therefore, the petition should be denied. I did not see fit to an order for costs.

If my opinion is heard, the petition will be denied and as aforesaid, there will be no order for costs.

 

•  

Justice D. Barak Erez

1. The petitions before us raised fundamental issues pertaining to the manner in which the State fulfills its responsibility for the health of the public in general and the welfare of children in particular. They also raised the basic issue of conditioning rights and eligibilities. In general, I concur with the comprehensive opinion of my colleague, Justice E. Arbel, and I too believe that the petition should be denied. Nevertheless, I wish to clarify my position with respect to some of the reasons that support this conclusion.

The Legal Issues

2. In fact, the discussion of the issue that has been placed before us—conditioning a part of the child allowances on the children’s vaccination within an amendment to a law—raised several secondary issues. The first question concerns the examination of the essence and legal status of the child allowances, the conditioning of which is at the center of our discussion. Specifically, the question in this context is whether the eligibility for child allowances is an “ordinary” legal right, conferred merely by a law, or whether it constitutes a manifestation of constitutional rights. Insofar as the argument is that the child allowances embody constitutional rights, it is necessary to examine what is the constitutional right they represent. This question is important because the violation of a constitutional right is not tantamount to the violation of a legal right that does not enjoy a super-statutory status. The second question revolves around the essence and purpose of the condition for granting the allowance: the requirement to vaccinate the children as infants. As part of this question, it is necessary to examine what is the purpose of the vaccination requirement is and whether there is a link between this purpose and the objective of the child allowances. The third question focuses on the legal regime that applies to the conditioning of rights. This question is related to the first question, since the conditioning of legal rights and the conditioning of constitutional rights should not be addressed in the same manner. The fourth question is whether the distinction that was made in legislation between parents who vaccinate their children and parents who do not amounts to a violation of the constitutional right of equality. The fifth question, derived from the former questions, is how the above normative scheme affects the constitutional judicial review of the amendment to the law, in accordance with the constitutional tests of the limitation clause in the Basic Law: Human Dignity and Liberty.

Child Allowances: History and Purpose

3. As we mentioned, the first question with which the discussion should begin revolves around the essence and objective of the child allowances, as were set in the National Insurance Law. (5755-1995 (hereinafter, the “National Insurance Law”). Because the basis for a discussion on constitutional review of the validity of a law is the status of the right violated, we should begin and by examining if, and to what extent, the eligibility to receive a child allowance is a right that enjoys constitutional protection.
4. My colleague, Justice Arbel, articulated the purpose of the child allowances as part of the fabric of Israel’s social legislation. To this I would like to add a review of the historic development of the arrangements in the field, a development that sheds light on the ongoing use of the child allowances as a tool for promoting of social policies.
5. In general, the child allowances were subject to many changes from the time they were first introduced in the format of legislation until the regulation thereof in our time. Generally speaking, a clear process of strengthening the universal element in granting the allowances can be pointed out. The intention is to grant child allowances to each and every family for each of its children, without taking into consideration economic data or other distinguishing criteria (distinct from past practice when they were only granted to some families or some children based on distinguishing criteria).
6. Before the establishment of the State, payment to parents for their children was made in the form of an increase to the employees’ salary. (See Johnnie Gal, Social Security in Israel, 97 and 102 (2004) (hereinafter, “Gal”)); Abraham Doron “Policy on Child Allowances in Israel” Spotlight on Social Policy Series 1, 2 (2004) (hereinafter, “Doron, the “Allowances Policy” ”)).
7. After the establishment of the State in 1950, the Kanev Committee submitted the Inter-Ministerial Report on Social Security Planning (1950), which included reference to a “children’s grants” plan (See Abraham Doron, In Defense of Universalism –The Challenges Facing Social Policy in Israel, 128-129 (1995) (on the report and its importance)). The report determined that this plan would only be implemented in the last stage of the introduction of social insurance in Israel because its performance was not economically feasible in the immediate future. Nevertheless, striving to increase the birth rate in Israel, the then prime minister, David Ben-Gurion, introduced a monetary prize to families with ten children and more. (Gal, on p. 103). Starting from the early 1950’s, proposals were made to grant allowances, and in the second half of that decade, the government began to demonstrate preparedness to consider the idea. (Meir Avizohar, Money to All – The Development of Social Security in Israel 67 (1978) (hereinafter, “Avizohar”)).

1. The first piece of legislation that dealt with child allowances was adopted in 1959 as an amendment to the National Insurance Law. (National Insurance Law (Amendment) (No. 4), 5719-1959 (hereinafter, “Amendment 4”)). The initiator of the legislation was the Minister of Labor, Mordechai Namir (hereinafter, “Namir”). In the background was a mass immigration from Middle Eastern countries that included large families whose breadwinners did not, at the time, adequately integrate into the labor market. The legislative initiative was thus derived from the social-economic gap created between the immigrant families and long established families in Israel, which were characterized by a smaller number of children on average. (Knesset Minutes 27, 2693-2642 (1959); Giora Lotan, Ten Years of National Insurance – An Idea and its Fulfillment 38 (1964)). Some argue that the Wadi Salib events in 1959 were a material catalyst to the enactment of the law (Gal, on p. 103, Avizohar, on p. 68-70) and this appears to have partial support in a discussion that was held in the Knesset (Knesset Minutes 27, 2642 (1959)). More generally, it can be said that the payment of the allowances was the first stage of a process that increased the involvement of the National Insurance Institute in reducing poverty and economic and social gaps in the population. (Ester Sharon, The Child Allowances System in Israel: 1959-1987 Where did it come from and where is it going? 3 (1987) (hereinafter, “Sharon”)).
2. The allowance payments were consistent, in principle, with the basic principles of national insurance in Israel, in the sense that they were granted on a universal basis, independent of income level. However, the allowance was initially granted only to families with at least four children, and only for children under the age of fourteen. (Michal Ophir and Tami Eliav, Child Allowances in Israel: A Historical View and International Perspective (2005) (hereinafter, “Ophir and Eliav”)). Minister Namir explained that these conditions were imposed for budgetary reasons, and that the aspiration was to lay down an infrastructure that would be expanded gradually. The deliberations on the scope of Amendment 4 were not particularly heated despite reservations on its small scope. Knesset Members supported Amendment 4 and expressed their hope that the terms of eligibility would be expanded in the future, and that it would presently succeed in encouraging births, eradicating poverty and enforcing equality among the various groups in Israeli society. (Knesset Minutes 27, 2667-2680 (1959)).
3. In 1965 the child allowances were expanded in several respects. First, the allowances were paid for all minor children, with no age distinction (that is, until the age of 18). Second, the allowance paid by the National Insurance Institute was accompanied by an employees’ children allowance that was only paid to salaried employees by their employers for their first three children, and was financed by the National Insurance Institute. Therefore, this allowance, unlike the regular child allowance, was deemed as taxable income. (See: The National Insurance Law (Amendment Number 12), 5725-1965, Statutes 461, 208; The National Insurance Regulations (Employees’ Children Allowance) (Part-Time Employees and Employment Seekers), 5725-1965 which were promulgated by virtue of Sections 31K and 115 of the National Insurance Law, 5714-1953; Gal on p. 103). In addition, in the early 1970s, an additional allowance was introduced for families with four or more children, if a family member served in the security forces (hereinafter, the “Military Veterans Allowance”). This payment was made directly from the National Insurance Institute and was exempt from tax. (Regulations on Grants to Soldiers and their Families, 5730-1970, Regulations 2605, 2180, promulgated by virtue of Section 40(B1)(2) of the Discharged Soldiers Law (Reinstatement in Employment), 5709-1949). In 1975, this payment was expanded to also apply to families with three children. (Regulations on Grants to Soldiers and their Families (Amendment), 5735-1975, Regulations 3298, 1001). Over the years, payments were also made to additional families, who did not fulfill the statutory condition of a military service; ultra-orthodox families received additional payments from the Ministry of Religion and families of new immigrants received such payments from the Jewish Agency. (Gal, on p. 104; Eliav and Ophir, on p. 5-6; Yoram Margaliot “Child Allowances” Berenson Book, Second Volume – Beni Sabra 733, 745 footnote 40 (Editors, Aharon Barak and Haim Berenson, 2000) (hereinafter, “Margaliot”)).
4. We can therefore summarize that in general, in the first half of the 1970’s, financial support was provided to relatively large families in several formats: first, universal child allowances were given by the National Insurance Institute; second, additional allowances were given in the Jewish sector to families for their children (whether Military Veterans Allowances or other allowances); third, employees’ children allowances were paid to salaried employees by their employers, and were taxed. These mechanisms were added, of course, to other welfare payments to which the families were eligible based on their individual economic condition. Additionally, families with a relatively high income enjoyed tax benefits which took the family size into consideration. However, this benefit was only enjoyed by families with a relatively high income, whose income was taxed. The incompatibility at the time between the various benefits and the understanding that families with many children constitute a more impoverished group together were a catalyst to a reform in the system. (The National Insurance Bill (Amendment Number 12), 5733-1972, Government Bill 1022, 30; The Amendment to the Income Tax Ordinance Bill (Number 18), 5733-1972; The Government Bill 1022, 31; The National Insurance Law (Amendment Number 12), 5733-1973, Statutes 695, 142; Raphael Rotter, The Reform in Child Allowances in Israel (1972); Arieh Nitzan, Twenty Years of National Insurance in Israel (1975) (hereinafter, “Nitzan”)).
5. The policy with respect to allowances underwent further turmoil following the recommendations of the Ben-Shahar Committee on the subject of the income tax reform in 1975. (Report of the Committee for Tax Reform – Recommendations for Changes to the Direct Tax, 25A-26A (1975)). Pursuant to the committee’s recommendations, the double treatment of the child allowances—within tax law and national insurance law—was discontinued, and it was decided to grant tax-free allowances on a universal basis to all families of salaried and non-salaried employees for all children in the family, starting with the first child, until they reach the age of 18. (National Insurance Law (Amendment Number 17), 5735-1975, Statutes 773, 152; Sharon, on p. 9-11).
6. The trend of expanding eligibility changed in the 1980’s to the desire to reduce public expenditure. The scope of allowances was reduced. In addition, the child allowances for the first two children, in families of up to three children with a marginal tax rate on the main breadwinner’s salary of at least 50%, were taxed. (Amendment to the Income Tax Ordinance (Number 59) Law, 5744-1984, Statutes 1107, 64; Sharon, on p. 11-12). In 1985 a tax was also imposed on the child allowance for the third child in families with up to three children and the marginal tax rate was reduced. In addition, the universal payment of the child allowance for the first child was revoked, except for low-income families. (The Arrangements Law for an Emergency in the State Economy, 5746-1985, Statutes 1159, 20; Sharon, on p. 12-13). The 1985 arrangement was supposed to remain in effect for only one year, but it “survived” (with various changes pertaining to the income test’s threshold amount) until 1993. (Ophir and Eliav, on p. 8; Sharon, on p. 12-13).
7. The pendulum swing child allowances policy continued in full force in the 1990’s. At first, the trend of reducing the universality which characterized the granting of the allowances at the end of the last decade continued, and the eligibility of small families not defined as “in need” was significantly reduced. Later, the trend was one of expansion, while strengthening universality in granting the allowances. In this decade, the following changes occurred: the conditioning of eligibility for the allowance on the family size was revoked; the Military Veterans Allowances were gradually cancelled; the allowances for large families were gradually increased. (The Arrangements Law for an Emergency in the State Economy (Amendment Number 15), 5750-1990, Statutes 1328, 188; The Arrangements in the State Economy Law (Legislative Amendments), 5751-1991, Statutes 1351, 125 (Indirect Amendment to the Arrangements Law for an Emergency in the State Economy, 5746-1985); The Income Tax Law (Temporary Order), 5753-192, Statutes 1407, 22 (Indirect Amendment to the Arrangements Law for an Emergency in the State Economy, 5746-1985); The Arrangements in the State Economy Law (Legislative Amendments for Attaining the Budget Goals), 5754-1994, Statutes 1445, 45 (Indirect Amendment to the Discharged Soldiers Law (Reinstatement in Employment), 5709-1949); Dalia Gordon and Tami Eliav “Universality v. Selectivity in the Granting of Child Allowances and Results of Performance Limitations” 50 75, 78 Social Security (1997) (hereinafter, “Gordon and Eliav”)).
8. The turmoil continued, even more forcefully, in the following decade. In 2001, the child allowance rate for large families was significantly increased—starting with the fifth child. However, shortly thereafter, a gradual cutback began in all allowances, including the child allowances, in order to reduce public expenditure. Another fundamental change that occurred in this period was equalizing the allowance given for each child in the family, irrespective of his birth order. At the same time, the attempt to reinstate the Military Veterans Allowances failed. (See Doron “The Allowances Policy”, on p. 4; Abraham Doron “Multiculturalism and the Erosion of Support for the ‘Welfare State’: The Israeli Experience” Studies on the Revival of Israel 14 55, 63-64 (2004)); Knesset Research and Information Center, Child Allowances in Israel: A Historic Review – an Update 8 (2008)).
9. The issue before us is related to an additional stage in the development of the policy on child allowances within Amendment No. 113 of the National Insurance Law, which was enacted as part of the Economic Streamlining Law. (Legislative Amendments for Implementation of the Economic Plan for 2009 and 2010), 5769-2009 (hereinafter, the “Amendment”)). As part of the Amendment, the allowances for the second, third and fourth child in the family were gradually increased by 100 shekel per month for each child, and eligibility to receive the full amount of the allowance was made contingent on the vaccination of the children.
10. This short historical review of the eligibility for child allowances reveals several important things. First and foremost, it demonstrates how eligibility for child allowances has always served as a platform for the promotion of national public objectives (for example, the encouragement of births and reduction of social gaps), which go beyond the narrower purpose of supporting the family’s finances. For example, in a discussion held in the Knesset on Amendment 4, which gave rise to the child allowances for the first time, Minister Namir stated the following:

The law was intended to achieve three goals that are social demographic and economic in nature: a) to ease the difficulties in the social condition of weak parts of society; b) to stop signs of negative trends in our demographic development c) to remove several errors and anomalies in the field of employment and distribution of wages in the factories, in relation to the employees’ family status.” (Knesset Minutes 27, 2639 (1959)).

11. The legislative history also demonstrates the fact that over the years, the child allowances expressed a different and changing welfare policy. In other words, the tool remained one, but into it were cast various objectives, or at least secondary objectives. The goal of reducing poverty among children hovered, throughout the year, over legislation concerning the child allowances indirectly and directly. However, in each of the periods reviewed, alongside the purpose of eradicating poverty stood additional purposes. In fact, even Amendment 4, which gave birth to the child allowances, was intended to provide a response, according to its legislators, to demographic data regarding births in Israel. An additional purpose at the time was bridging the social gaps created between various groups of immigrants in order to promote their integration in Israel.
12. The recurring oscillation between the expansion of eligibility for allowances for small families, and its reduction for large families, marks the tension between the perception that, in general, the State’s role is to contribute towards the cost of raising children ,together with their parents (Doron “The Allowances Policy”, on p. 2), and the perception that child allowances provide a way to fulfill other roles the State has taken upon itself, such as reducing unemployment and gaps in society and encouraging births. (Margaliot, on p. 734-754). In practice, we have learned that child allowances constituted, throughout the years, a means of realizing various social and economic goals that were placed at the top of the political agenda in each period. For our purposes, it is important to note the following information: child allowances are supposed to promote the welfare of families raising minor children. However, the child allowances are not paid in correlation with the family’s economic situation (and in this they differ from income assurance payments). (Compare: HCJ 5578/02 Manor v. The Minister of Finance [2004] IsrSC 59(1) 729 (hereinafter, “Manor Case”), in which former President A. Barak referred to the old-age pension and held that unlike the income assurance allowance, this one is not intended to guarantee a dignified minimal existence). At most, it might be said that they are provided according to the estimated needs of families raising children. (Compare: Abraham Doron, The Welfare State in an Age of Change 72 (1987)). Additionally, the purpose of promoting the economic welfare of families who are raising children is not the sole purpose of the allowances.
13. Thus, it can be determined that in view of the many aspects of eligibility for child allowances, as well as the changes it has undergone through the years, the objective of the allowances is a broad objective of striving to promote the welfare of the children in the Israeli society, as well as to promote the social policy of the government at a given time. This insight is important in continuing the discussion on the legal status of the allowance.

Child Allowances: Legal Rights or Constitutional Rights

14. Child allowances are currently given by virtue of a law—the National Insurance Law. Does the right to receive child allowances as it they are granted today constitute an exercise of a constitutional right? Like my colleague, Justice Arbel, I too believe that it was not proven before us that this is correct at this time.
15. The ruling on this issue is relevant to the continuation of the constitutional examination process, since the conditioning of the legal means for exercising the constitutional right is not tantamount to the conditioning of the constitutional right itself. Indeed, without legal means for exercising the constitutional right, the right may remain as an empty normative shell, void of content. There may certainly be situations where either the conditioning or denial of the means to fulfill the constitutional right will amount to a violation of the right itself. However, this should be examined in each and every case. This can be compared to a two-story building: on the upper floor is the constitutional right itself; on the lower floor are the means for its fulfillment. Too severe of an injury to the foundations of the lower floor, by conditioning or otherwise, will result in harm to the upper floor, the floor of the constitutional right, and undermine protection. Thus, the question is whether the petitioners have successfully shown that conditioning eligibility for child allowances amounts to a violation of a constitutional right. Additional examples that illustrate the importance and relevance of this distinction can be found in case law regarding the violation of the right of access to the courts. For example, it has been held that a person does not have a vested right to exercise the right of access to the courts through a specific procedural proceeding. Therefore, limiting the ability to file a class action does not necessarily amount to a violation of the right of access to the court. (See and compare: HCJ 2171/06 Cohen v. The Chairman of the Knesset, paragraphs 21 and 24 (August 29, 2011)).
16. Child Allowances and the Right of Dignity – Indeed, this Court’s rulings have repeatedly emphasized that the protection of the right to a dignified human existence falls within the scope of the protection of the right of human dignity enshrined in the Basic Law: Human Dignity and Liberty, and that its protection is identical to the protection given to the other basic rights. (HCJ 366/03 The Association for Commitment to Peace and Social Justice v. The Minister of Finance, [2005] IsrSC 60(3) 464, 482-484; HCJ 10662/04 Hassan v. The National Insurance Institute (February 28, 2012), paragraphs 34-36 (hereinafter, “Hassan Case”)). However, a distinction should be drawn between the constitutional right and the legislative and administrative means that are used for its fulfillment. The right to dignified human existence does not have to be fulfilled through the payment of child allowances, and in the present legal situation it is not even clear that this is the purpose for which they are paid. As a matter of policy, and in order to promote various national public objectives, the Israeli legislature has chosen to provide for the welfare of families with children, irrespective of their economic situation.
17. In legislative conditions in which the State does not provide a means of existence for weakened populations, payment of child allowances may, de facto, guarantee their dignified existence. Nevertheless, at this time, it has not been proven to us that eligibility to receive child allowances was intended to maintain a dignified human existence or that it is essential to its protection, and therefore, under these circumstances, conditioning the eligibility is not in itself conditioning of a constitutional right. Nothing in the aforesaid negates the possibility to prove that, in a specific case, or following other changes in the welfare system in Israel, cutbacks in child allowances will violate the rights of individuals to basic conditions of a dignified existence. As mentioned, this has not been argued before us and was consequently not proven. It should be added that Section 68(c) of the National Insurance Law orders an increase in the regular child allowance payment for the third and fourth child when the parent is eligible for an income assurance allowance or support payments through National Insurance, but the amendment to the law before us has no ramifications on this special increment and does not derogate therefrom.
18. Child Allowances and the Right to Property – The petitioners also argued that the eligibility for child allowances is a property right protected by the constitutional protection of property under the Basic Law: Human Dignity and Liberty, through application of such protection to “new property.” Indeed, through the years, the term “property” has been attributed a broader and more realistic understanding. Currently, rights vis-à-vis the State (the right to a license, the right to an allowance) are no less important to a person’s financial situation than classic rights of property, and their importance may even exceed that of classic property rights, as demonstrated by the scholar Reich in his classic article on the issue. (Charles Reich, New Property, 73 Yale L. J. 733 (1964)). The legal protection of new property was also recognized in the judgments of this Court. (See HCJ 4806/94 D.S.A. v. The Minister of Finance, [1998] IsrSC 52(2) 193, 200-202; HCJ 4769/95 Menachem v. The Minister of Transport [2002] IsrSC 57(1) 235, 275), which also recognized certain welfare allowances as new property (Manor Case, on p. 739). However, recognizing rights vis-à-vis the State as property cannot be identical in all characteristics to the protection of traditional rights of property. When the State wishes to expropriate a plot of land owned by a person it is a violation of property that requires constitutional justification and is required to satisfy the tests of the limitation clause. It would be improper to apply precisely the same legal regime to a situation in which the State is seeking to reduce eligibility given to a person by the State treasury. The eligibility for child allowance payments for example, expresses, inter alia, the economic and social policy in place at the time the eligibility was granted. Adopting the approach that the scope of eligibility for an allowance as it was set in the past has become a property right in its classical sense, would lead to the conclusion that the State is very limited, more than it should be, in the possibilities available to it to change its social and economic policy. (Compare: Daphne Barak Erez, Administrative Law, Volume A, 50-52 (2010) (Barak Erez, Administrative Law); Daphne Barak Erez, Citizen-Subject-Consumer – Law and Government in a Changing State 32-33 (2012) (hereinafter, “Barak Erez, Citizen-Subject-Consumer”). This perception is contrary to the democratic perception to practical needs, and to the justified recoiling from “sanctifying” the status quo (which occasionally may also reflect unjustified bias toward strong groups that acted in the past to enact laws that benefitted them). Obviously, if the eligibility for child allowances was required for the protection of dignified human existence, this would have been a good reason to impose restrictions on its reduction. In addition, rights to receive allowances from the State must be protected in that they must be granted equally and changes to them must take into consideration legitimate reliance upon them. Furthermore, there may be room for additional distinctions such as a distinction between an allowance based on an insurance mechanism or a feature of savings via mandatory payments that were made over the years (such as an old-age pension; see Manor Case, on p. 739), and an allowance that was granted in the form of a one-time grant (compare Daphne Barak Erez “The Defense of Reliance in the Administrative Law” Mishpatim 27, 17 (1996); HCJ 3734/11 Haim Dudian v. The Knesset of Israel, paragraphs 24-25, (August 15, 2012)). In any event, the argument that “what was will be”, in itself, cannot be sufficient.
19. To emphasize further, holding that there is no constitutional right to receive support from the State in the form of child allowances, does not mean that this eligibility is not significant. Moreover, once the State has chosen to pay child allowances under law, it is required to do so in a manner that complies with constitutional standards and in this context to ensure, among other things, that payment of the allowances will be made equally and indiscriminately (as distinct of course, from the setting of legitimate conditions to the receipt of the allowances), as will be explained below.
20. As Justice Arbel mentioned, the argument regarding violation of rights was also raised before us with a special emphasis on an alleged violation of the rights of the children for which the allowances are to be paid, separately from their parents’ rights. This argument is supported by the current perception that recognizes children’s rights and does not merely support a paternalistic protection of their interests. (Compare: CA 2266/93 John Doe, Minor v. John Doe [1995] IsrSC 49(1) 221, 251-255; Yehiel S. Kaplan “The Child’s Rights in Israeli Case Law – The Beginning of the Transition from Paternalism to Autonomy” Hamishpat 7 303 (2002)). This development is indeed very significant. Nonetheless, under the circumstances of this case, it cannot change the framework of the discussion. First, it is important to note that the distinction between the rights of children and protecting their best interests without asking their opinion is important in situations where it is possible to consider the child’s autonomy of will. However, our case focuses on young infants who, undisputedly, cannot take an autonomous and rational stance on the question of whether to be vaccinated. It should be emphasized in this context that the statutory scheme explicitly orders the continued payment of the allowance even if the children were not vaccinated, once the early infancy period proper for vaccination passes. Second, the petitioners’ argument regarding the amendment’s violation of the child’s rights was made generally without stating which of the rights has been violated. The discussion we conducted clarifies that the contingent reduction of the child allowances does not violate, in itself, a constitutional right, including constitutional rights of children (unless it will be invalid for another reason, such as discrimination, an issue that will be examined separately below). To a certain extent, the argument of a violation of the children’s rights in this case wishes to repeat the argument regarding the violation of the parents’ autonomy to make decisions with respect to their children’s best interests. This tension frequently underlies decisions on the best interests of children and repeatedly arises, for example, in relation to decisions regarding the children’s education. (Compare: Yoram Rabin, The Right of Education 121-124 (2002)).

The Objective of the Vaccination Requirement: Between Rights and the Public Interest

21. Based on all that has been said thus far with relation to the legal status of the child allowances and the objective underlying them, it is necessary to address the second question regarding the objective of the Amendment that conditions part of the eligibility for the allowance on vaccinating the children.
22. The policy on the vaccination of young children is currently considered a very important tool in the protection of children’s health – both from the aspect of each child’s right to good health and the aspect of the public interest in eradicating epidemics which claimed many victims in the past. (See for example: David E. Bloom, David Canning & Mark Weston, The Value of Vaccination, 6 World Economics 15 (2005); Saad B. Omer and others, Vaccine Refusal, Mandatory Immunization, and the Risks of Vaccine-Preventable Diseases, 360(19) New England J. Medicine 1981 (2009)). The State of Israel has excelled since its establishment in operating Family Health Centers, which were an important element in ensuring the population’s health. This public health operation ensured the vaccination of children, for their benefit and for the benefit of the population as a whole.
23. Through the years, criticism was voiced against the sweeping policy of child vaccination. Some parents refrain from vaccinating their children for various reasons—both because of a belief that vaccinations are dangerous to children’s health and because of a position that prefers “natural” immunization, acquired over the years via “natural” contraction of diseases. So long as those refraining from vaccinations are a minority, choosing this alternative is ostensibly a rational alternative for the relevant persons because of the effect known as “herd immunization;” that is, the phenomenon wherein those who are not vaccinated are in fact protected from contracting diseases when most of the people around them are properly vaccinated. Thus, there is a risk of free riders here, and if it increases it may eventually compromise “herd immunity,” which weakens as the rate of non-vaccinated persons rises. In fact, the decision to vaccinate has characteristics of the “prisoner’s dilemma:” it is a decision that must be made in conditions of uncertainty with regard to the acts of others, and whose benefit from the perspective of the individual also depends on the behavior of such others. Individuals facing the decision whether to be vaccinated will always tend not be vaccinated (provided that others are being vaccinated), purely out of promotion of self-interest. This is a classic case of a “market failure” that justifies intervention. (See also Christine Parkins, Protecting the Herd: A Public Health, Economics, and Legal Argument for Taxing Parents Who Opt-Out of Mandatory Childhood Vaccinations, 21 S. Cal. Interdisc. L. J. 437 (2011)). De facto, there is a decline in child vaccination. The professional opinion of the Ministry of Health, supported by clear professional opinions on the matter, is that the decline in child vaccination constitutes a health risk, both to the children themselves and to the population as a whole (due to the risk of contracting diseases from children who were not vaccinated and later contract serious diseases).
24. The new Amendment to the law was intended to provide a response to the problem presented above. This problem is also present in other countries, and a spectrum of responses to situations of non-vaccination of children can be pointed to. (See in general: Daniel Salmon and others, Compulsory Vaccination and Conscientious or Philosophical Exemptions: Past, Present and Future, 367 Lancet 436 (2006)). Among the well-known examples, the United States and France represent a rigid approach to the enforcement of the vaccination obligation. In France, the Code of Public Health (Code de la Sante Publique) states that parents and guardians of children are personally responsible for their vaccination, and proof of proper vaccination must be presented upon the child’s acceptance to an educational institution. (Section L3111-2 of the code). Alongside the aforesaid obligation, criminal sanctions of up to six months imprisonment and a fine were set forth. (Section L3116-4 of the code). A mandatory vaccination policy is also common in the United States. The means employed, as well as the scope of the limited exemptions granted on religious freedom or freedom of conscience grounds, vary between the different states, as these issues are regulated on a state, and not a federal, basis. However, it appears that a central means used is the imposition of a limitation on the enrolment of children in schools when they are not vaccinated in accordance with the basic vaccination plan, because of the concern that others will be infected. Constitutional petitions that challenged laws that imposed vaccination obligations were rejected, based on the recognition of the importance of vaccinations to public health. (See Jacobson v. Massachusetts, 197 U.S. 11 (1905) (a general discussion of the vaccination obligation); Zucht v. King, 260 US 174, 176-77 (1922) (a specific discussion on the conditioning of school enrollment on vaccination). Alongside the aforesaid, additional sanctions were used over the years, including setting a statutory vaccination obligation whose violation entails a fine and cutbacks in municipal education budgets. In the city of New York, for example, it was decided to impose fines on schools that accept unvaccinated children, even when they fall within one of the exceptions that allow parents not to vaccinate their children. The fine is imposed for each day in which an unvaccinated child was present on school grounds. In this manner, the city of New York wished to create an incentive for parents to vaccinate their children, since failing to do so compromises the school’s budget and the level of education it is able to provide. (See further: Alan R Hinman, Walter A Orenstein, Don E Williamson & Denton Darrington, Childhood Immunization: Laws That Work, 30 J. L. Med. & Ethics 122, 123 (2002); Gary L Freed, Victoria A Freeman & Alice Mauskopf, Enforcement of Age-Appropriate Immunization Laws, 14(2) Am. J. Prev. Med. 118 (1998); D. Isaacs, H. A. Kilham & H. Marshall, Should Routine Childhood Vaccinations be Compulsory?, J Pediatr. Child Health 40(7) 392, 395 (2004); Anthony Ciolli, Religious & Philosophical Exemptions to Mandatory School Vaccinations: Who Should Bear the Costs to Society?, 74 Mo. L. Rev. 287 (2009); Ross Silverman, Litigation, Regulation, and Education – Protecting the Public's Health through Childhood Immunization, 360(24) New England J. Medicine 2500 (2009)).
25. Unlike in the United States, there is no norm of mandatory vaccination as a condition to the acceptance of children to school in Canada. In fact, only two provinces of Canada, Ontario and New Brunswick, have a statutory vaccination requirement. Nevertheless, an inspection of the education legislation of Ontario shows that alongside the requirement to vaccinate children as a precondition to their enrollment in the education system, a fine of up to $1,000 is also imposed on parents who fail to vaccinate their children. (Education Act, SNB 1997, c E-1.12, s 10; Immunization of School Pupils Act, RSO 1990, c I.1, s 3-4).
26. A different approach prevails in Australia, where monetary incentives are given to parents who respond to the vaccination plan. This is, to a certain extent, in the spirit of the solution chosen by the Israeli legislator. This approach is recognized in academic literature as more respectful of the parents’ autonomy, and ethically appropriate, insofar as it does not endanger the lion’s share of welfare payments for children. (See David Isaacs, An Ethical Framework for Public Health Immunisation Programs, 23(5-6) NSW Public Health Bulletin 111,114 (2012).
27. The comparative law was reviewed merely to illustrate the variety of means employed by other legal systems in a similar context. Obviously, these examples themselves cannot dictate the outcome. However, they emphasize several points that ought to be discussed. First, they show that the issue of child vaccination and imposing sanctions in this context (even when they may indirectly harm the children themselves) are also present in other systems to promote the welfare of the children themselves and the welfare of the public. Second, other systems went as far as imposing sanctions, which may be deemed harsher than those methods adopted by the Israeli legislature. These sanctions may indeed serve more closely the purpose of achieving the result of vaccinating children (due to their weight), but they simultaneously entail more severe harms to the children and their parents (including the imposition of fines or prevention of the children’s studies in educational institutions). I will mention these alternatives again when addressing the limitation clause.
28. And now: the Amendment discussed before us was intended to achieve a double purpose of protecting the health of infants, for whom contracting the diseases against which the vaccine protects may be dangerous and at times even lethal, and protecting public health as a matter of national medical policy through the creation of  “herd immunity”. This double purpose will also be important for our later discussion regarding the limitation clause. At this point it can also be said that the double purpose of the law does not mandate a direct confrontation with the discussion on the limits of paternalism. As is known, the classification of a legal rule as paternalistic is made through the prism of the grounds underlying it. Therefore, the more the legal rule intervenes in the individual’s autonomy of will for the sole purpose of protecting him and his welfare from his own actions, the more likely we are faced with a paternalistic rule. More specifically, in our case we have a paternalistic rule which intervenes in the parents’ autonomy of will in order to stop them from making a mistake, as the issue is perceived by the Ministry of Health. The question of the appropriate limits of paternalism has been extensively discussed and this framework is too narrow to discuss it. (See, for example: John Stuart Mill, On Liberty (Arieh Simon, Translator, 1946); Peter De Marneffe, Avoiding Paternalism, 34(1) Philosophy and Public Affairs 68 (2006); Gerald Dworkin, Moral Paternalism, 24(3) Law and Philosophy 305 (2005)). For purposes of the current discussion it is important to state on this issue the following two points. First, it is evident that those engaged in the legislative work were aware of the difficulties caused by over-intervention in the decisions of individuals. Thus, for example, the drafters of the law refrained from setting a statutory vaccination requirement, the breach of which entails a punitive sanction; instead, they were satisfied with the creation of an economic incentives scheme, which leaves parents a wider array of choices. The fact that it is only the increase in the allowances that is made contingent on the vaccination of the children, while leaving the base allowance intact suggests the same. Second, it is certainly doubtful whether we have before us a paternalistic rule in the full sense of the word, considering that the Amendment was intended not only to protect the children and their parents from themselves, but also to protect the general public against the outbreak of diseases. It seems that the duty of the Ministry of Health to institute preventive measures to eradicate diseases that threaten public health cannot be disputed.
29. Moreover, since the Amendment was intended to promote the protection of the health of children in the State of Israel, it should not only be deemed as a means that violates rights (in the name of an important public interest), as the petitioners argued, but also as a means intended to promote rights in a positive manner—in this case, the children’s right to health. The above fits in with the general perception of Basic Law: Human Dignity and Liberty, pursuant to which the protection of basic rights is not merely reduced to a negative protection against the damaging power of government, but also extends to a positive protection which reflects the government’s duty to operate in an active manner for the protection of basic rights. While according to Section 2 of the Basic Law: Human Dignity and Liberty “[t]here shall be no violation of the life, body or dignity of any person as such” (and here the negative protection of these rights is expressed), according to Section 4 of Basic Law: Human Dignity and Liberty “[a]ll persons are entitled to protection of their life, body and dignity (in other words, the government is also required to positively promote these rights).” Although the question regarding the scope of the constitutional right to health has yet to be decided, there is no doubt that striving to guarantee basic conditions of good health falls within the boundaries of the right to human dignity. In addition, it can be deemed as a derivative of the right to life and of the protection of the person’s body. (Compare: Eyal Gross “Health in Israel: Right or Product”, Economic, Social and Cultural Rights in Israel (Yoram Rabin and Yuval Shani, Editors, 2004); LCA 4905/98 Gamzo v. Yesha’ayahu [2001] IsrSC 55(3) 360, 375-376; HCJ 3071/05 Luzon v. The State of Israel (July 28, 2008), in paragraphs 9-17; HCJ 11044/04 Solometkin v. The Minister of Health (June 27, 2011), in paragraphs 11-16). Legislation seeking to create incentives for child vaccination is legislation that falls not only into the category of laws that limit rights, but also that of promoting rights in general and children’s rights in particular. Section 4 of the Basic Law expresses a clear position that rejects the perception that the State is at its best when it does not intervene. Article 25 of the Convention on the Rights of the Child, 1989 also states the obligation of the member states to act for the promotion of children’s health, including “to develop preventive health care.” (Article 25(6)).

Conditioning of Rights: The Normative Framework

30. The third question of those I mentioned in the beginning is the legal question at the heart of the petition: to what extent can conditions be imposed on rights vis-à-vis the State and more specifically, is it possible to condition rights on requirements which the recipient of the right is required to fulfill?  What is the supposed novelty of setting conditions? The law frequently defines rights and eligibilities as such that include restrictions and conditions to their fulfillment, either paternalistic conditions seeking to protect the holder of the right from himself or conditions seeking to protect the public interest. However, the other side of the coin is that imposing conditions on rights raises a concern of weakening those specific rights and eroding the concept of a right until it is turned into a benefit given by the grace of government.
31. An important distinction that should be drawn at the outset is the distinction between constitutional rights and legal rights. The main concern regarding the conditioning of rights pertains to the conditioning of constitutional basic rights. The liberal doctrine of rights is based on the perception that constitutional basic rights are the individual’s shield against government’s power, and thus they are supposed to be, in the usual case, autonomous of any and all limitations. The history of the democratic fight for rights is tied to the perception that rights are also conferred on those who are not perceived as “normative persons,” violators of law, and those who are not deemed, ever or at the time, to be “model citizens”. On the contrary, many battles for rights were shouldered by those whose opinions outraged others and were a thorn in the side of people in authority.
32. Does this mean that conditions may never be imposed on constitutional rights? In fact, since I have reached the conclusion that payment of child allowances does not reflect, at least for the time being, a protection of a constitutional right, I am no longer required to answer this question directly, and therefore I will address it relatively briefly. In general, the position regarding the setting of conditions on the exercise of constitutional rights should be suspicious and minimizing. However, attachment of conditions to the exercise of a constitutional right cannot be rejected at the outset and in advance (as distinct from conditions aimed at denying the constitutional right itself), if only because of the perception that rights are relative for the most part, and not absolute, as indicated by the limitation clauses included in the basic laws. For example, exercising the right of access to courts can be made contingent upon payment of a fee (subject to exceptions guaranteeing that the payment of the fee does not bar persons without means from conducting legal proceedings). (See for example, LCA 3899/04 The State of Israel v. Even Zohar [2006] IsrSC 61(1) 301, 319-321; LCA 2146/04 The State of Israel v. The Estate of The Late Basel Naim Ibrahim [2004] IsrSC 58(5) 865, 868; M.C.M. 457/01 Karlitz v. The Officer of the Elections for the City of Beer Sheva 1998 [2001] IsrSC 55(3) 869, 872)). Similarly, the income assurance allowance, which is generally the legal manifestation of the constitutional right to a dignified human existence, can be contingent upon the requirement to “exhaust earning capacity.” In both cases, the conditions are not “foreign” to the purpose of the relevant rights considering that the payment of a fee assists in making sure that the use of the right of access to the courts will not lead to inefficient use of the important public resource of the judicial system, and that the requirement to exhaust earning capacity contributes to the proper use of the limited resource of support for those who cannot ensure their basic sustenance.
33. In any event, the case before us falls within a different category: the conditioning of legal rights vis-à-vis the State (by virtue of legislation, as distinct from super-statutory constitutional basic rights). Because the conferral of rights pursuant to the law is supposed to also serve public interests and public policy, the conferral of this type of right is often accompanied by conditions. Below I will refer to standards which should guide the legislature, and later the court, in outlining the proper framework for the conditioning of legal rights.
34. Presumably, the conditioning of rights available to individuals vis-à-vis the State does not necessarily raise a constitutional difficulty. We should remember that the law often defines rights and eligibilities as such that include restrictions on and conditions to their fulfillment. The aforesaid notwithstanding, in practice the imposition of conditions on legal rights may also be problematic on the constitutional level, when the essence of the condition is a waiver of a constitutional right. For example, conditioning of a legal right, such as eligibility for an allowance, on the recipient’s waiver of his right to freedom of speech or his right to freedom of religion and conscience is problematic even though, theoretically, the government may choose not to grant such an allowance at all. The reason for this is concern about an indirect limitation of constitutional rights. In American constitutional law, the accepted term for discussing the problem of eligibilities given by the government based on a (supposedly voluntary) waiver of constitutional rights is the unconstitutional conditions doctrine. (See for example: Note, Another Look at Unconstitutional Conditions, 117 U. Pa. L. Rev. 144 (1968); Allen Redlich, Unconstitutional Conditions on Welfare Eligibility, Wis. L. Rev. 450 (1970); Richard A Epstein, Unconstitutional Conditions, State Power and the Limits of Consent, 102 Harv. L. Rev. 5 (1988); Kathleen M. Sullivan, Unconstitutional Conditions, 102 Harv. L. Rev. 1413 (1989); Cass Sunstein, Is There An Unconstitutional Conditions Doctrine?, 26 San Diego L. Rev. 337 (1989); Brooks R. Fundenberg, Unconstitutional Conditions and Greater Powers: A Separability Approach, 43 UCLA L. Rev. 371 (1995); Daniel A. Farber, Another View of the Quamire: Unconstitutional Conditions and Contract Theory, 33 Fla. ST U. L. Rev. 913 (2006); Renee Lettow Lerner, Unconstitutional Conditions, Germaneness, and Institutional Review Board, 101 Nw. U. L. Rev. 775 (2007); Philip Hamburger, Unconstitutional Conditions: The Irrelevance of Consent, 98 Va. L. Rev. 479 (2012)). We are not bound, of course, by the details of this doctrine, and some aspects of its scope and application are still in dispute in American law itself. Nevertheless, it does indicate the caution necessary in conditioning legal eligibilities, which may indirectly violate constitutional rights. In this spirit, and without exhausting discussion in the matter, I wish to present primary relevant considerations in examining such conditioning. As I will clarify below, these considerations will ultimately be included in the formal constitutional examination performed within the context of the limitation clause.
35. Relevance of the Condition and its Affinity to Eligibility – Essentially, conditions to eligibility are supposed to have a relevant connection to the policy the eligibility is intended to promote. In order to clarify the nature of the discussion, let us consider two hypothetical examples that may be discussed in relation to framing the eligibility for income assurance allowances: first, conditioning eligibility for receipt of the allowance on the applicant not having a bad traffic record; second, conditioning eligibility on the applicant’s active desire to re-join the employment circle by visiting the employment bureau each week. Our intuition suggests that the second condition is legitimate, as it is consistent with the purpose of the income assurance allowance and it comports with the public interest underlying it—the re-integration of a person who has been excluded from the employment circle, while providing a last residual protective net on the way there. (Hassan Case, in paragraphs 6-7 and 57). The translation of this intuition into a legal principle tells us that the condition should derive from the same legal circle within which the conditioned right is operated. In other words, the purpose of the condition and the public interest promoted through it must be derived from the same normative field in which the conditioned right is rooted. The weaker the connection between the two becomes, the more the conditioning becomes constitutionally illegitimate. For example, although there is no dispute that eradicating driving violations and creating a system of incentives to promote this are desirable from perspective, these have absolutely nothing to do with eligibility for income assurance allowance. The purposes underlying each of these arrangements are foreign to one another. This foreignness indicates the arbitrariness of the conditioning and the flaw in combining them with each other. Sometimes, the question of the relevance of the conditioning may also be examined with respect to the question of whether the condition is paternalistic and seeking to promote the best interests of the holder of the right himself, or a condition seeking only to protect a wide public interest. Sometimes, of course, the conditioning of the right may encapsulate more than one reason within it.
36. An auxiliary test that may assist in examining the nature of the affinity and the connection between the purpose of the condition and the conditioned right focuses on the date the condition was imposed and the legislative history behind it. Generally, insofar as the condition was imposed on or about the time the right was granted, the conditioning will be classified as part of the definition of the right and delineation of its scope. Insofar as the condition is added, or should we say “pasted,” at a later date, adding it should be deemed as external conditioning of the normative content of the right. This is of course merely an auxiliary test and no more. Situations can also be conceived where a new statutory eligibility is “born” with an attached foreign and inappropriate condition.
37. Without making a final determination, an example seemingly close to our case is the birth grant given by the State, which is contingent on the mother having chosen to give birth in a hospital and not in her home. (Sections 42-43 of the National Insurance Law). In this context too, the State wishes to help the mother but at the same time promotes a public policy that the delivery will take place in the hospital, which is, as the State and professionals perceive it, in the best interests of the mother and the newborn as well as in the best interests of the public as a whole. In addition, the condition attached to the eligibility is in affinity the general purpose of the eligibility, promoting the welfare of the mother and her family.
38. Voluntary Choice – A distinction must be made between voluntary conditions, which give the individual freedom of choice, and conditions that refer to inherent identity characteristics that a person is unable to change or that it would be inappropriate to require him to change (such as religious or national origin). The importance of this consideration cannot be exaggerated. Conditioning rights on a requirement that contradicts identity characteristics will, by its nature, cause difficulties, and raise a heavy suspicion of discrimination. Obviously, between the extreme situations of full choice on the one hand, and coercion and lack of choice on the other hand, there may be interim situations in which the incentives that accompany the choice affect whether the condition violates a right. 
39. Scope of Conditioning – Another consideration that should be taken into account concerns the scope of conditioning: that is, the extent of exposure of the right to the restricting power of the condition. In this context, both the scope of coverage of the condition and whether it applies to the entire right or perhaps only to part of it are significant. Similarly, it may be examined whether the condition pertains to an addition to an existing eligibility, or perhaps results in the derogation therefrom.

Imposition of Conditions on Rights: From the General to the Particular

40. The application of these standards to the case before us makes clear that the Amendment in our case does not create an arbitrary connection between a legal right and the promotion of a public interest.
41. Pertinence of the Condition and its Affinity to Eligibility – The State grants child allowances to everyone (in other words, over and above what is required for the purpose of guaranteeing the right to a dignified human existence of children who grow up in conditions of poverty) in order to promote the welfare of the families who raise children and the children who are raised by them in particular, including the promotion of their health, alongside other public purposes. Thus, in this case, the conferral of the right to receive a child allowance was made contingent upon a condition that has a direct and unequivocal affinity to the purpose for which the right was conferred in the first place; the condition is based on an opinion of independent professionals who indicate that the best interests of children and of society require that they be vaccinated. In these circumstances, in which the right to the allowance is contingent upon a condition that is directly and clearly entwined with the best interests of its beneficiary, it is not difficult to hold that the condition is pertinent. The child allowances are not only granted in order to provide for the children, but for their welfare, including other basic rights they have such as education and health.
42. Indeed, an inspection of the comparative law may serve as a basis for the argument that a condition that links the acceptance of children to schools and their vaccination expresses a stronger affinity between the condition and the right than as distinguished in our case where eligibility for child allowances was made contingent upon their vaccination. However, in practice, and following further inspection, this argument is unconvincing. De facto, the only difference between the American conditioning model and the Israeli conditioning model is the time the children’s vaccination condition was imposed, not the intensity of the link between the condition and the eligibility. Both models see the need to protect the children themselves and the need to protect those who come into daily contact with them. However, the Israeli legislator wished to move up the date of the condition that incentivized children’s vaccination as a preventive measure, and thereby make redundant the future dilemma with which health policy makers in the United States and Canada are dealing, namely, when parents are required to enroll their children in the education system. In addition, earlier vaccination of infants appears to be more effective from a preventive medicine standpoint, and if so, it is more logical to create an incentive to vaccinate the children at an earlier stage, prior to sending them to the education system. In fact, insofar as the main purpose is to prevent the infection of other children, it makes sense to make the connection to the time of entrance into the educational institution. However, insofar as the purpose is the promotion of the best interests of the children themselves, an earlier date is preferable.
43. Some of the arguments advanced by petitioners attempted to undermine the assumption that conditioning the allowances indeed promotes the children’s health and their general welfare. One argument made before us on this issue is that there are views that vaccination of children does not serve their best interests and that the route of natural immunity is preferable. A second argument raised in this context is that conditioning the right to child allowance constitutes “double punishment” of the relevant children. First, they are not being vaccinated and thus their health is compromised. Second, the State does not pay their parents the full child allowance amount, and thus their welfare is also harmed. These arguments should be dismissed. The first argument, pertaining to the uselessness of vaccination for the children’s health cannot be accepted because of the factual basis underlying it. The medical opinion underlying the vaccination policy is a solid one supported by many studies. The petitioners’ arguments regarding the existence of other approaches have their due respect, but the formulation of national policy is supposed to be based on the position of the professional bodies of the government, founded on studies and examinations. Nothing in the petitioners’ arguments undermines the firm basis underlying the policy, at least for the time being. The second argument should also be dismissed. This argument is based on the assumption that conditioning part of the eligibility for child allowances on vaccinating the children is merely a sanction and cannot direct behavior. This assumption remains unsubstantiated. Moreover, the Amendment was enacted in a format that inherently attests that it was intended to direct behavior. The reduction of child allowances is not imposed as a sanction in an irreversible manner. This reduction applies only during the period in which the parents are supposed to vaccinate the child with the vaccine they avoided. During the vaccination period the parents receive several notices and warnings on the consequence of failure to vaccinate the children. Furthermore, once the suitable period for giving the vaccine passes, the allowance returns to its regular amount. Thus, it may be said that the Amendment is phrased in a manner intended to create a means for directing behavior, and at least at this stage, there is no reason to believe that it will not succeed to do so. In any event, this cannot be pre-assumed.
44. Voluntary Choice – The Amendment to the law assumes, in practice, that the impediment to vaccinating children derives from the parents’ choice not to vaccinate, and not from the fact that the State does not guarantee reasonable access for the entire population to this essential service, in terms of both location and cost. The aforesaid is particularly important in view of the fact that one of the petitions before us was filed by Adala Center, which alleged insufficient dispersion of Family Health Center services among the Bedouins in the Negev region. If indeed there was no reasonable access to the vaccination services for the entire population, then the Amendment is problematic because this would mean the denial of eligibility for child allowances is in fact arbitrary and does not in practice promote the purpose of the Amendment. In order to avoid this inappropriate result, the Amendment should be interpreted pursuant to its objective and denial of the eligibility for child allowances should only apply in situations where parents choose not to vaccinate their children, and not in situations in which the parents refrain from doing so due to lack of reasonable access to health services. De facto, the State’s arguments painted a positive picture of improvement in the level of accessibility to Family Health Center services in the Negev region, and the State is presumed to continue to act in this direction. In addition, the State has undertaken, both in writing and orally, that the vaccination fee will be cancelled, so that the cost of vaccination will not be a barrier for those who lack financial means.
45. Scope of Conditioning – conditioning eligibility for child allowances on the children’s vaccination does not apply to the entire allowance but only to part of it. Failure to fulfill the condition does not deny the entire child allowance (like it does not deny all other means that the social laws in Israel provide for the fulfillment of the child’s right to a dignified existence).
46. Thus, it may be concluded, at this time, that the imposition of conditions on eligibilities relies on solid foundations, at least when (like in the case before us) the eligibilities discussed are eligibilities pursuant to a law that promote public policy (as distinguished from constitutional rights), the condition set is related to the purpose of granting the eligibility, the fulfillment of the condition depends on the free choice of the relevant party, and especially because the conditioning does not apply to the entire eligibility.

Equality in Granting Eligibilities

47. The fourth question that should be examined, according to the order of things, also relates to the content of the conditioning, and in this context focuses on the level of equality. The petitioners argue that the Amendment to the law discriminates in issue granting full payment of child allowances between those who vaccinate their children and those who do not vaccinate their children. Is this really the case?
48. My colleague, Justice Arbel, accepts the petitioners’ argument on this matter, based on the assumption that the condition placed upon the allowance is foreign both to the structure of the allowance and to its purposes (paragraph 49 of the opinion of Justice Arbel). In my opinion, the starting point for the discussion on this issue should be different. In fact, as the discussion on the history of the child allowances makes clear, these allowances embodied several purposes throughout the years, and they are seeking, inter alia, to promote the welfare of children in Israel in general. Examining things from this perspective, it cannot be said that a condition that promotes the vaccination of children in Israel, and thus protects their health (according to the prevailing perceptions in the scientific community), is a condition foreign to the purpose of the allowances (as I explained above in paragraph 48).
49. Furthermore, it is also possible to observe the matter through a comparison of the children who receive vaccinations and those who are denied vaccinations by their parents. The conditioning of the child allowances expresses the State’s commitment to also care for the latter.
50. On a wider perspective, an important question hovering in the background is whether whenever the law distinguishes between people or groups, it is right to deem the distinction as a violation of the right to equality, and then to examine through the limitation clause; or whether there are “relevant” distinctions that would not be considered, a priori, a violation of the right to equality. For example, does the payment of child allowances only to parents of children constitute justifiable “discrimination” because it is done for a proper cause and satisfies all other conditions of the limitation clause, or is it a distinction that does not amount to a violation of the right to equality from the outset?
51. Ultimately, I am of the opinion that a ruling on these issues is not necessary in the case before us because a link exists between the distinction made and the relevant individuals’ autonomy of will. According to the judgments of this Court, the right of equality is constitutionally protected as part of the right to human dignity in those situations where the distinction projects on the individual’s autonomy of will. (See HCJ 6427/02 The Movement for Quality Government v. The Knesset [2006] IsrSC 61(1) 619, 680-691; HCJ 7052/03 Adala Legal Center for the Rights of the Arab Minority in Israel v. The Minister of Interior [2006] IsrSC 61(2) 202, 303-304). Since the Amendment has ramifications for decisions that express the parent’s autonomy of will with regard to the upbringing of their children, even if the Amendment does not violate the autonomy of will, the fact that underlying the distinction is the autonomous choice of the relevant individuals justifies holding that the Amendment violates equality in a manner that requires to examine whether it satisfies the limitation clause.
52. It is important to add that it cannot be said, based on the data placed before us, that the Amendment imposes a discriminating reality that wrongfully distinguishes between infants from the Jewish sector and infants from the Bedouin sector. Against this argument made by Adala Center the State presented figures (updated as of 2009) in which the rate of unvaccinated Bedouin children (nine percent) is similar to the rate of  unvaccinated Jewish children (seven percent), insofar as we are referring to children between the ages of two and five ( three percent in the Arab sector). In any event, the Amendment should be interpreted in a way that excludes from the condition anyone who wishes to vaccinate his children, but to whom vaccination services are not made reasonably accessible by the State. In this sense, the petitioners’ path will be open to argue against the implementation of the law (as distinct from against its constitutionality) insofar as the access to the vaccination services is not adequately available.

The Amendment to the Law through the Limitation Clause

53. Based on the above, I wish to discuss the fifth and concluding question: does the Amendment include a violation of a constitutional right, and does this violation, if any, satisfy the constitutional tests of the limitation clause.
54. Like my colleague Justice Arbel, I showed that the majority of the petitioners’ arguments regarding the violation of constitutional rights are unconvincing. In the absence of a violation of a constitutional right, the discussion ends before it begins, and all that remains is criticism (right or wrong) of a public policy that was embodied in an act of legislation and whose place is in the public sphere. The eligibility for child allowances is part of a welfare policy currently serving the best interests of many children across the country in the immediate future, as well as the best interests of the public as a whole in the long term. However, there is no constitutional right to receive it in one specific form. The State can also care for the welfare of people in general and people living in poverty by paying other allowances and introducing changes to the current allowance policy, which is not “sacred” or “set in stone.” No factual foundation has been laid out before us for the argument that child allowances are essential for the dignified human existence of their recipients, and even more so, no factual foundation has been laid out before us to establish that those who avoid vaccinating their children are people who particularly need these allowances. It should be further noted that in most cases (except when the unvaccinated child is an only child), even parents who refrain from vaccinating their children, whatever their motivations might be, are left with the eligibility for the basic child allowance. They are not denied the latter, but only the increase provided by the Amendment. The strongest argument for a violation of a constitutional right in this case was the argument on the alleged violation of the right to equality. Even if a violation of the right of equality was found, it would satisfy the tests of the limitation clause (pursuant to Section 8 of the Basic Law: Human Dignity and Liberty), as I will demonstrate briefly.
55. Under the circumstances of this case, it can easily be seen that the first three conditions of the limitation clause are satisfied almost prima facie. The classification of the eligibility for child allowances was set in an explicit amendment to the law. The purpose of the law is proper, both in the with respect to the right to health of each one of the children to be vaccinated and with respect to the sense of the national interest of public health. In any case, legislation that promotes such important purposes befits the values of the State of Israel as a state that wishes to promote the welfare of its citizens. Thus, it remains to discuss the question of proportionality, which focuses on the means chosen to achieve the purpose. A proper purpose is not enough; the means chosen to achieve the purpose must also be appropriate, suitable and proportionate.
56. The first sub-test of proportionality is the rational means test that asks, whether the means chosen are indeed expected to achieve the purpose of the legislation. The answer to this question is positive, as we stated earlier, at least for the time being. A legislative practice of granting monetary incentives (positive and negative) to promote various behaviors, by conditioning various eligibilities (in the areas of taxes and welfare) is a common matter. Underlying each and every one of these acts of legislation is the assumption that incentives direct behavior. There is no reason to believe that things will be different in our case. If different information accumulates later on, the legislature will be required to assess it.
57. At most, it may be said that the application of the first sub-test of proportionality in the case before us presents the following paradox: the means used (conditioning the eligibility on an act of vaccination) is expected to achieve the purpose, but may achieve it less effectively than harsher means (such as prohibiting acceptance of unvaccinated students to educational institutions). This is why the petitioners characterize the means used as some kind of a “sanction” and not as means of enforcement: because it cannot be guaranteed in advance that the parents will respond to the incentive the conditioning seeks to create. Using a harsher means could have guaranteed the achievement of the purpose with more certainty, but it would have come at the price of a more severe violation of rights, and in this sense would have created more difficulty within the framework of the second sub-test and the third sub-test of proportionality, discussed below.
58. The second sub-test of proportionality examines whether the chosen means are the less harmful means. It seems to me that the case before us is a clear instance where the act of legislation is based on a careful and meticulous thinking process with regard to the means chosen as compared with other possible alternatives. In the course of deliberation, arguments pointed out alternative methods that were used elsewhere or that might have been used, such as preventing unvaccinated children from studying in educational institutions (as in France and the United States) and imposing punitive sanctions, .It can easily be seen that the majority of these means are actually harsher and more harmful than the route chosen by the Israeli legislature. Preventing unvaccinated children from studying in educational institutions is a very harsh step with regards to the scope of the damage to the children. It also comes at a relatively late point in time considering the optimal age for vaccination according to the policy of the Ministry of Health. Imposing a punitive sanction on people who choose not to vaccinate their children is certainly an offensive step, which does not respect those who are deeply convinced that the vaccination will harm their children. Thus, only the tool of advocacy remains, whose value cannot be exaggerated in this sensitive context in which the parents’ level of conviction is essential to obtaining the goal of wide-scope vaccination. (Compare Michal Alberstein and Nadav Davidowitz “Doctrine of Therapeutic Law and Public Health: An Israeli Study” Mehkarei Mishpat (26) 549, 571-578 (2010)). However, the Amendment to the law was enacted after the advocacy approach failed to produce sufficiently effective results according to the Ministry of Health. It may be added that having said that refraining from vaccinating is a seemingly rational act for the promotion of self-benefit in an environment in which most people are vaccinated, the creation of a monetary incentive (if only limited) to be vaccinated is thinking in the right direction because it creates a counterbalance to the benefit entailed in the decision not to vaccinate. (Compare to the discussion in Parkins’ paper above). Perhaps an incentive that is not directly related to child allowances could have been used, and perhaps this type of an incentive should have been preferred. A “vaccination bonus” or a similar benefit could have been established for parents who vaccinate their children. Practically speaking, there is no significant difference between these two methods because in both cases the result is the denial of a benefit from a family because the parents choose not to vaccinate their children. In conclusion, the petitioners failed to indicate a measure of lesser harm that would have achieved the legislative purpose to a similar extent. (See in this context: Aharon Barak, Proportionality in the Law 399 (2010)).
59. Another consideration in assessing the existence of alternative means pertains to the fact that the basic Vaccination Program to which the Amendment applies includes vaccinations for diseases whose consequences are very severe on one hand, and the contraction of which cannot usually be prevented through other means on the other hand. This consideration is important seeing as part of the vaccination plans enforced in other countries are aimed at diseases, contracted through sexual relations or blood donations that can also be prevented in other ways. (See Note, Toward a Twenty-First Century Jacobson v. Massachusetts, 121 Harv. L. Rev. 1820 (2008); Marry Holland, Compulsory Vaccination, the Constitution, and the Hepatitis B Mandate for Infants and Young Children, 12 Yale J. Health Pol'y L. & Ethics 39 (2012)).
60. The third sub-test of proportionality, the narrow proportionality test, examines the appropriate relationship between the means chosen and the purpose, as “the end does not justify all means.” I believe that the Amendment to the law before us also passes this final sub-test relatively easily. The purpose which the Amendment to the law seeks to promote is highly important—promoting the health of young children in Israel, as well as promoting the public’s health in the face of serious diseases that break out during times when vaccination enforcement is lax. The means chosen to promote this purpose—a partial reduction of child allowances for a limited period as a means to encourage parents to vaccinate their children—is relatively mild. In addition, it should be kept in mind that currently the Vaccination Program is limited to only four vaccines (given in one concentrated shot), such that the condition to receiving the allowances is essentially limited. It was further determined that the process is reversible in the sense that once the child is vaccinated or the maximum age for vaccination passes the reduction will be cancelled and the allowance recalculated. Furthermore, the reduction of the allowance was capped and proceedings to contest and appeal the institution’s decision to limit the allowances have also been established. The importance of the purpose alongside the relatively minor harm caused by the sanction, speaks for itself. The relatively minor violation of rights in this case constitutes a counterbalance to the recognition that employing a harsher means could have created a tighter link between the means and the purpose within the first sub-test of proportionality as specified above.

Conclusion: About Rights and the State’s Responsibility

61. An overview of the petition reveals a fundamental tension between the expectations the various individuals have of the State. On the one hand, there is an expectation that the State minimize its intervention in decisions of its citizens. On the other hand, there is an expectation that the State operate in an active manner to promote the citizens’ welfare. (On the discrepancies between the various expectations from the State, compare Barak Erez, Administrative Law, on p. 54-55; Barak Erez, Citizen-Subject-Consumer, on p. 34-35). The tension that exists between these expectations might lead to a conflict, like in the case before us. When the State takes an active stance with respect to child vaccination, it is intervening in personal decisions. Thus, it is ostensibly intervening in the private sphere. However, the means used by the State in this case pertain to the granting of child allowances, the mere granting of which expresses the State’s involvement in the family sphere. Moreover, intervention in the private sphere is not necessarily bad, particularly when it is done to promote the rights of the weak individuals in the family unit, those whose voice is not always heard—in this case the children whose parents did not act to vaccinate them.
62. There may be a dispute on the scope of the requirement to vaccinate children and perhaps, over the years, changes will even occur in the perceptions that direct the policy in this area. However, on principal, the starting point with regard to the State’s intervention in promoting children’s welfare does not always have to be suspicious. Essentially, taking an active stance on the issue of child vaccination is not the State riding roughshod over rights, but rather evidence of the State’s commitment to the welfare of the children in Israel, a commitment whose importance cannot be exaggerated.
63.  

Justice E. Hayut:

1. I agree with the result reached by my colleagues, Justice E. Arbel and Justice D. Barak Erez, that the three petitions should be denied. Like them, I too believe that the petitioners in each of the petitions did not show a violation of the constitutional right to property or to a dignified human existence, and in this context I saw no need to add to the explanations in my colleagues’ opinions. As for the constitutional right to equality, Justices Arbel and Barak Erez determined that Amendment No. 113 to the National Insurance Law ([Consolidated Version], 5755-1995 (hereinafter, the “Amendment to the Law”) violates the right of equality, but further held that despite this violation, the petitions should be denied because the violation satisfies the conditions of the limitation clause. My route to the same result is different. For the reasons I will specify below, I believe that the petitioners in the three petitions failed to show a violation of the right to equality. However, before we examine the question whether the right to equality has been violated, we should inquire what is the group of equals that should be referred to in this context.
2. One of the arguments raised by the petitioners in HCJ 7245/10 is the argument that the right to child allowances a right conferred upon the child and not his parents. (compare CA 281/78 Sin v. The Competent Authority under Nazi Persecution Disabled Persons Law, 5717-1957 [1978] IsrSC 32(3) 408) and thus the relevant group of equals is the group of children who were given the right to the allowances specified in the National Insurance Law when they came into the world. According to this approach, the essence of the violation of the constitutional right to equality is that, with regard to the child allowances, it is improper to distinguish between children who were vaccinated and those who were not vaccinated. On the contrary, this type of distinction, it is argued, constitutes a double harm to the children: not only did their parents fail to vaccinate them, but the allowance for which they are eligible is reduced because of it. This argument is captivating but it appears to have no real basis in the provisions of the law. Section 66 of the National Insurance Law states that “an insured parent is eligible for a monthly child allowance under this chapter for each child.” This indicates that the right set forth in the law is the parent’s right, provided that the child for whom the allowance is paid is in the custody of that parent. (See Section 69 of the National Insurance Law). Another provision that supports this conclusion that the right to the allowance set in the National Insurance Law is the right of the parent and not the child, is Section 68(b) of the National Insurance Law, which determines a differential payment of the allowance for each of the children in the family according to the birth order. It is obvious that such differential payment is improper if the right to the allowance is the child’s right, since there is no justification to discriminate between the children with regard to the extent of social support they will receive from the State, based only upon the time they were born relative to the other children in the family. In contrast, if the allowance is the parent’s right, it makes sense and is justified to consider, with regard to the social support the cumulative amount available to the family, and therefore setting different allowance amounts for children, based on their birth order does not constitute discrimination. It should further be mentioned that in the past, a tax, in various amounts and under various conditions, was imposed on the child allowances, treating them as parents’ income. (See for example: Taxation of Allowance Points Law (Temporary Provision), 5744-1984; for support of the continuation of child allowances taxation policy see Yoram Margaliot “Child Allowances” Berenson Book Second Volume – Beni Sabra 733 (Editors, Aharon Barak and Haim Berenson, 2000); and for a historical review of child allowance taxation see paragraphs 8-15 of the opinion of Justice D. Barak Erez). The National Labor Court has also adopted the opinion that the person eligible for the child allowance is the parent and not the child. (See NIA 1117/04 Azulai v. The National Insurance Institute (November 2, 2006)). The starting point in examining the question of discrimination raised in the petitions before us is that the right to child allowance is the parents’ right, and that the parents therefore constitute the relevant group of equals.
3. Does the Amendment to the law, which is the subject matter of the petition, discriminate between the different groups of parents?

“The obligation to act with equality means giving equal treatment to equals and different treatment to those who are different.” (See, for example, HCJ 4124/00 Yekutieli v. The Minister of Religious Affairs, paragraph 35 (June 14, 2010) (hereinafter, “Yekutieli Case”)). Since the enactment of the Basic Law: Human Dignity and Liberty, the right to equality has been recognized as part of the person’s right to dignity in the sense that discrimination, even if it is unaccompanied by humiliation, will be deemed as a violation of the constitutional right to equality which enjoys the constitutional protection conferred under the Basic Law. (HCJ 6427/02 The Movement for Quality Government v. The Knesset [2006] IsrSC 61(1) 619, paragraphs 40-43 of the opinion of President Barak (hereinafter, “re: MQG Case”)). The obligation not to discriminate, which is imposed first and foremost on government authorities, is nothing but a mirror image of the person’s right to equality; therefore, a law that discriminates between equals in the aforementioned aspects may be invalidated as unconstitutional, unless the violation of equality can be justified as a violation that satisfies the conditions of the limitation clause in Section 8 of the Basic Law: Human Dignity and Liberty.

The uniqueness of the petitions before us is in that the petitioners are not arguing that it is unjustified to prefer the group of vaccinating parents over the group of non-vaccinating parents; they focus their arguments instead solely on the manner in which the legislature has chosen to express this preference. For example, the arguments of two out of the three groups of petitioners (in HCJ 7245/10 and HCJ 8357/10) make clear that they consider it very important that the population of children will indeed receive the MMRV vaccine according to the Ministry of Health’s vaccination program (hereinafter, the “Vaccination Program”), and they also deem it justified to set a policy that incentivizes parents to give their children this vaccine, in order to protect the general population from spreading of dangerous epidemics. The petitioners in HCJ 908/11 argue that the effectiveness of the vaccines is uncertain, but they do not argue that simply creating an incentive to vaccinate the children creates an irrelevant and unequal distinction, and focus their arguments on the discrepancy they believe exists between this distinction and the objective of the child allowance. It appears that there is no dispute that the State is entitled, and perhaps even obligated, to use the means available to it to maintain public health, and that according to the medical data in the State’s possession (the accuracy of which the petitioners in HCJ 908/11 dispute), the Vaccination Program is effective and essential in the prevention of dangerous diseases. From this derives the conclusion that the legislature is allowed to treat the group of parents who vaccinate their children differently than the group of parents who do not vaccinate their children, and from the arguments in all three petitions it is clear that had the legislature chosen, for example, to give a monetary bonus to the parents who vaccinate their children rather than reduce the allowance for those who do not vaccinate their children, the petitioners would have had no argument regarding a constitutional violation of the right to equality. In other words, the petitioners do not dispute the fact that the legislator may give different treatment to each of the aforesaid groups, and that it is permitted to do so, inter alia, through an economic incentive.                

4. Does the fact that the economic incentive enacted by the Knesset was incorporated into the child allowance mechanism by way of reducing the allowance (a negative incentive) cause, in itself, a violation of the constitutional right to equality?

Justice Arbel believes that the purpose of the child allowances is to help fund the families’ expenses in raising children, and thus the denial of a part of the allowance for reasons unrelated to the number of children in the family “would be foreign to the allowance, and therefore violate the right to equality.” (Paragraph 49 of her opinion). Justice Barak Erez believes that the “strongest argument, relatively, of a violation of a constitutional right in this case was the argument on the alleged violation of the right to equality,” and although she doesn’t explicitly determine that such a violation indeed exists and or indicate what makes it strong, she holds that “in any event, even if a violation of the right to equality was found, it would satisfy the tests of the limitation clause.” (Paragraph 61 of her opinion, and see also paragraphs 57-58 of her opinion).

I disagree.

The fact that the legislature amends an existing law, and at the same time creates a new distinction between the groups of those entitled to receive all rights pursuant to the amended law, does not, in itself, constitute a violation to equality, unless we believe that the groups designated as entitled persons in the original law must never be changed. It appears to me that such a rigid approach is uncalled for, and it seems that the question that ought to be examined in this context, like in other cases in which we try to identify wrongful discrimination, is whether the new distinction between the groups of entitled persons created by the law in its amended form treats equals differently. The common method in case law to identify the “group of equals” whose members are entitled to equal treatment is to examine the “objective of the law and essence of the matter, the fundamental values of the legal system, and the special circumstances of the case.” (See for example HCJ 6051/95 Rekant v. The National Labor Court [1997] IsrLC 51(3) 289, 346; HCJ 3792/95 National Youth Theater v. The Minister of Science and Arts [1997] IsrSC 51(4) 259, 281; AA 343/09 Jerusalem Open House for Pride and Tolerance v. The City of Jerusalem, paragraph 41 of the opinion of Justice Amit (September 14, 2010)). In other cases it was stated that the question of whether this is a prohibited discrimination or a permitted distinction will be examined according to the “accepted social perceptions,” (HCJ 721/94 El Al Israel Airlines Ltd. V. Danilowitz [1994] IsrSC 48(5) 749, 779; HCJ 200/83 Watad v. The Minister of Finance [1984] IsrSC 38(3), 113, 118-119; MQG Case, in paragraph 27 of President Barak’s judgment). The fundamental values of our legal system recognize legislative models in which the legislator incorporates into a law intended for a specific main objective, secondary objectives intended to promote important social purposes, even if there is not necessarily a tight link between them and the main objective of the law. For example, the main purpose of the Income Tax Ordinance is “[to] ensur[e] income for the public authority’s treasury,” but the legislature has also used the ordinance and taxation provisions to promote additional social purposes through which “[S]ociety fights phenomena that are perceived as negative. It encourages acts that it wants to encourage and deters acts it wants to prevent.” (Aharon Barak “Interpretation of Tax Law” Mishpatim 28, 425, 434 (1997); For example, see HCJ 2651/09 The Association for Civil Rights in Israel v. The Minister of Interior, paragraph 31 of Justice Danziger’s opinion (June 15, 2011)). The above also applies to customs laws intended mainly, to increase the State’s income, but at the same time serving additional purposes including the “regulation of the demand and the protection of local production and products.” (CA 2102/93 The State of Israel v. Miron Galilee Industrial Plants (MMT) Ltd. [1997] IsrSC 51(5) 160, 167). The objective of the National Insurance Law is to “guarantee proper means of existence for the insured, their dependents and survivors, whenever their income is reduced or disappears for one of the reasons set by the law.” (CA 255/74 The National Insurance Institute v. Almohar [1974] IsrSC 29(1), 11, 14). However, this law, like the other acts of legislation mentioned, promotes additional social purposes as well, such as incentivizing the social and public interest of delivering children in hospitals rather than at home (Section 42 of the National Insurance Law), performing amniocentesis for pregnant women aged thirty-five to thirty-seven (Section 63 of the National Insurance Law), and encouraging the integration of disabled persons into the workforce. (Section 222C of the National Insurance Law; and see in general, Abraham Doron “The Erosion of the Insurance Principle in the Israeli National Insurance: The Effect on the Functioning of the Israeli Social Security Scheme” Social Security 71, 31 (2006)).                   

5. Does each additional social purpose promoted by a law necessarily violate the constitutional right to equality by discriminating with respect to its general purpose? Of course not. The main question that ought to be examined in this context is not what is the relationship between the general purpose of the existing law and the additional purpose the legislator is seeking to promote, but whether, according to the general tests set in the Rekant Case and other cases which we mentioned above, the legislator has wrongfully discriminated between equals for the promotion of such purpose. For example, it was held in the past that granting tax benefits that are not based on pertinent distinctions or criteria is constitutionally discriminatory and wrongful. (Former) President Beinisch articulated this as follows:

            Granting of tax benefits is tantamount, in economic terms, to granting public funds to selected individuals. Although it is true that the State does not directly transfer funds to taxpayers (and therefore it is commonly deemed as indirect support), essentially, the indirect support is tantamount to charging all taxpayers with tax payment, and in the second stage repaying it to selected individuals only. Such a distribution of public resources, without criteria, constructs a reality in which selected individuals are preferred over others, despite the fact that there is no relevant difference between them. This amounts to a blunt disrespect for a person’s equal status before the law.

            (HCJ 8300/02 Nassar v. The Government of Israel, paragraph 46 (May 22, 2012) (hereinafter, “Nassar Case”) From the positive one can deduce the negative: the tax benefits intended to direct social behavior, although they do not directly derive from the objective of income tax, are not wrongful in themselves, unless they give preference to a group which is not relevantly different from another group.

6. The petitioners focused on the main purpose of the child allowances, i.e. the provision of social-financial support to those who are parents of children (this purpose also underwent many changes over the years, as arises from the comprehensive review of the legislative history in this regard, specified in the opinion of Justice Barak Erez). Based on this purpose, the petitioners argued that the relevant group of equals is all of the insured, as defined in Section 65(a) of the National Insurance Law, who are parents of children.

Indeed, this probably was the purpose of the child allowances on the eve of the Amendment to the law. However, the legislature has now revealed its view that it wishes to add a secondary purpose, which will affect a certain derivative of the increased allowance set in the Amendment (up to NIS 300 per family)—increasing  the rate of vaccinated children in the population in order to promote the health of children and the public. As far as the normative ranking, this additional purpose does not differ from the objective of the child allowances before the Amendment, and in this sense the former purpose has neither priority nor exclusivity for the purpose of defining the relevant groups of equals. Because the normative ranking is identical, the examination of the argument of discrimination with regard to the Amendment to the law is different from an argument of discrimination in regulations or procedures of the executive authority, in that we are often required to examine the latter in reference to the purpose of laws ranking higher on the normative ladder. (See for example HCJ 9863/06 Organization of Fighter Leg Amputees v. The State of Israel – The Minister of Health, paragraphs 11-14 (July 28, 2008); HCJ 153/87 Shakdiel v. The Minister of Religious Affairs [1988] IsrSC 42(2) 221, 240-242; HCJ 4541/94 Miller v. The Minister of Defense [1995] IsrSC 49(4) 94, 108-110). On the constitutional level, it has been held in the past that legal provisions are discriminatory with respect to the purpose of the same law when a distinction irrelevant to the purpose for which the law was intended was made. (Nassar Case, paragraphs 39-42, 50-52 of the opinion of (former) President Beinisch; Yekutieli Case, paragraph 39 of President Beinisch’s opinion. In these cases, it was a law whose clear purpose pertains to a wide group, but whose clauses were “hiding” conditions that reduce its applicability to a specific group. (On hidden discrimination, see for example HCJ 1113/99 Adala Legal Center for the Rights of the Arab Minority in Israel v. The Minister of Religious Affairs [2000] IsrSC 54(2) 164, 175; HCJ 1/98 Cabel v. The Prime Minister of Israel [1999] IsrSC 53(2) 241, 259-262). This is not the case here. The Amendment to the law which is the subject matter of this petition has altered the purpose of the child allowance in the sense that, similar to the tax legislation which promotes various public purposes, it includes the purpose of incentivizing child vaccination, incidental to promoting its general purpose as articulated above.       

7. This does not complete the examination of the violation of the constitutional right of equality. As aforesaid, the group of equals is defined not only with respect to the purpose of the law, but also with respect to the essence of the issue, the fundamental values of the legal system, the special circumstances of the case and the prevailing social perceptions. Had the legislature sought to add to the child allowance scheme another purpose that created a distinction between groups that are not relevantly different from one another pursuant to these tests, such an addition would have violated the constitutional right to equality. For example, had the distinction been between groups, the belonging to which does not depend on choice but rather derives from various characteristics of the parents, it would have been justified to wonder whether these characteristics are relevant, according to the fundamental values of the legal system and the prevailing social perceptions. In such a theoretical case, it could not have been argued that the purpose of the Amendment to the law is to promote proper behavior of the parents, and it would have therefore been necessary to deeply examine whether there is indeed a relevant distinction that would justify preferring one group over the other. In addition, regarding the aspect of providing an incentive—positive or negative—for certain behaviors, it should be examined whether the distinction between the various behaviors justifies a distinction between the legal consequences that accompany them in accordance with the tests established in case law. However, in the case before us, not only did the petitioners not support the argument that these are equal groups according to the acceptable tests accepted in case law in this context, but, de facto, they agreed that this is a distinction between groups that may justifiably be treated differently because it is necessary to protect public health, at least according to the studies held by the Ministry of Health. Hence my conclusion that in this case, the distinction set forth by the Amendment to the National Insurance Law between parents who vaccinated their children and parents who refrained from doing so, with regard to the reduction of a set amount of child allowance, does not constitute a violation of the constitutional right of equality of the parents who chose not to vaccinate their children.
8. In HCJ 7245/10, an argument was raised on the discrimination of the Bedouins in the Negev based on the fact that this sector’s access to Family Health Center services is very limited and this sector consequently finds itself in an impossible situation where it has no access to vaccines and yet is being told to vaccinate. In my opinion, this argument does not establish constitutional grounds for a violation of equality; and insofar as it indeed transpires that pursuant to the Amendment any child allowance belonging to a parent who wished to vaccinate his child but was unable to do so due to lack of suitable access to a Family Health Center was reduced, this would, in my opinion, be a good argument to raise in the contestation and appeal proceedings set forth in Sections 68(i) and 68(j) of the National Insurance Law. Without addressing the argument on the merits, it should be noted that while these petitions were being deliberated, the respondents acted to increase access to Family Health Centers in the Bedouin sector in the Southern District (see details in paragraph 62 of the opinion of Justice Arbel), and the respondents have also presented figures that show that the vaccination rates in this sector are similar to the rates in the other sectors. Therefore, the discrimination argument insofar as it was raised with regard to the Bedouin sector should be rejected in this case.
9. Before concluding and, I would like to make two notes. One pertains to the nature of the reduction contemplated in the petition. Unlike my colleague, Justice Barak Erez (paragraphs 37-53 of her opinion), I believe that a reduction of child allowances by a set amount as a result of failing to vaccinate according to the Vaccination Program is a sanction and not conditioning. As I understand it, there is an obvious difference between the reduction set by the Amendment to the law and the conditions set forth with regard to eligibility for child allowances, including: the child’s presence in the State of Israel, the child’s age is below eighteen (Section 65(a) of the National Insurance Law [Consolidated Version], 5755-1995), the child is, generally, in the custody of an eligible parent (Section 69 of the National Insurance Law), and the parent is an “Insured” within the definition of Section 65(a) of the National Insurance Law. These and others are conditions to the receipt of child allowances, which guarantee that the allowance will be given to families whose characteristics fulfill the purpose of the child allowance. However, the nature of the reduction set by the Amendment to the law is different from these conditions in several respects. First, the amended law grants an increment to the allowance and alongside such increment also determines that certain amounts of this increment will be deducted from the allowance paid to the parent if the required vaccine is not given by the date set forth in the Vaccination Program. In the words of the provision, if the child is not vaccinated “the monthly child allowance paid for him will be reduced by the sum of NIS 100.” (Section 68(d)(1) of the National Insurance Law; the emphasis has been added). A “reduction” is, as its name suggests, the denial of a right that has been granted, and therefore, it seems that the words of the law and the mechanism chosen support the viewpoint that this is a sanction. Second, this is a reduction that is intended to motivate parents to vaccinate their children using a negative economic incentive that denies part of the allowance amount due to conduct that is inconsistent with the goal the legislature seeks to promote. Such a negative economic incentive bears, by its essence and purpose, the characteristic of a sanction and has a punitive hue that is directed against someone who chooses to jeopardize the health of his children and the health of the general public. In view of my position that we are faced with a sanction and not conditioning, I did not deem it necessary to address the doctrine and the auxiliary tests, which my colleague chose to develop at length in her opinion, with respect to the issue of conditioning. I will further note in this context that the position that we are faced with conditioning was not raised by any of the litigants, and in any event was not discussed and deliberated in the petitions at bar. For these two reasons, I believe this issue may be left for the opportune moment.

1. Another remark I would like to make as a side note follows. In my opinion, while the reduction at the center of the petitions neither violates the constitutional right to equality nor other constitutional rights and, thus there is no need to grant the remedy sought in the petitions—invalidating the Amendment to the law which sets the reduction—it is difficult to avoid the impression that in the case at bar, the legislature chose a “shortcut” in order to promote the Vaccination Program of the Ministry of Health. The fact that the legislator chose to enforce an administrative Vaccination Program, set by the Director General of the Ministry of Health (Section 68(d)(3) of the National Insurance Law) through a reduction in child allowances derives mainly, it seems, from considerations of efficiency. These considerations were expressed in the Statements of Raviv Sobel, (Former) Deputy Director of Budgets at the Ministry of Finance, in a deliberation held before the Finance Committee of the Knesset:

            The data presented by Dr. Kedman regarding the ineffectiveness of the criminal supervision . . . PM Oron says that we will send an army of policemen, an army of controllers, and they will get the job done, but we see that this is not working . . . there are worse things for which the State of Israel does not indict people; and if someone thinks that the criminal tools are those through which all problems can be solved, just like they discovered around the world that this is not the way, it also became clear in Israel that this is not the way. Criminal tools are not enough. Therefore, certainly, financial incentives are also a tool.

            (Minutes of the Finance Committee’s meeting of June 24, 209, on p. 44; Annex 2 to the preliminary response to the petitions on behalf of the Knesset).  

Indeed, it is difficult to dispute the assumption that the imposition of a sanction based on the data relied upon by the authority, without having to confront the difficulties of its execution, makes the sanction highly efficient. However, without derogating from the importance of considerations of efficiency, it may have been proper to also take additional considerations into account. Perhaps, based on such considerations, it would have been appropriate to first enact a law that creates a vaccination requirement before imposing a sanction on its breach, which would also be set out in the same law. In other words, perhaps it would have been appropriate to take the statutory “highroad” and to regulate the entire issue of vaccination in a single act of legislation. In this context, it is noteworthy that if, for example, a criminal prohibition had been imposed on refraining from vaccinating children it would not have been possible to collect fines imposed on child allowances since national insurance allowances are non-attachable. (Section 303(a) of the National Insurance Law; Section 11 of the Tax Ordinance (Collection); and see also, Pablo Lerner “On the Attachment of Salaries in the Israeli Law”, Hapraklit [48] 30, 46 2005); David Bar Ophir, The Procedure and Case Law of Execution 893-894 (Seventh Edition, 2012)). Furthermore, the right to child allowances is a central and basic social right. This was expressed in both the petitioners’ arguments and in deliberations of the Knesset’s Finance Committee. For these reasons, and for other reasons that can be raised in this context, I believe that it would be appropriate to consider the use of other means to promote the proper purpose of encouraging child vaccination, such as through granting a positive economic incentive to those who vaccinate, or alternatively, through the use of different sanctions. In any event, because I have not found that the manner in which the legislature has acted violates a constitutional right, I concur with the result reached by my colleagues, Justices Arbel and Barak Erez, that the three petitions should be denied.

 

The conclusion of the judgment as per the opinion of Justice E. Arbel.

 

Issued on this date, 26 Sivan 5773 (June 4, 2013).

 

 

HCJFH 219/09

 

Minister of Justice

v.

Nir Zohar

The Supreme Court sitting as the High Court of Justice

[29 November 2009]

 

Before President D. Beinisch, Deputy President E. Rivlin, Justices E.E. Levy, M. Naor, E. Arbel, E. Rubinstein, S. Joubran, E. Hayut, Y. Danziger

Further Hearing on the judgment of the Supreme Court in HCJ 10021/06, issued on 23 December 2008 by Justices E.E. Levy, E. Rubinstein and Y. Danziger

 

Facts: The respondent was convicted of various crimes and sentenced to life imprisonment in 1996, after which he was given additional sentences for crimes committed while on leave from jail. In 2004, he applied to the then-President of the State, Moshe Katzav, to reduce the duration of his sentence. Although the Minister of Justice at the time (Tzipi Livni) recommended thatthe application be denied, the President signed a letter limiting the respondent’s sentence to 32 years. The Minister of Justice refused to countersign the document approving the reduced sentence, as did other Ministers of Justice who served after her. The respondent petitioned the High Court of Justice, asking the Court to order the Minister of Justice to join her signature to that of the President of the State or, alternatively, to declare that the letter approving the reduction of the respondent’s sentence was valid despite the absence of the countersignature. In the original judgment, the majority (Justices Levy and Danziger) granted the petition, with Justice Rubinstein dissenting. The Minister of Justice petitioned for a further hearing.

 

Held:      Majority opinion: (President Beinisch; Deputy President Rivlin, Justices Naor, Arbel, Rubinstein, Joubran, Hayut concurring; Justice Levy concurring in part). The pardoning power of the President of the State is an Israeli creation and is not an unqualified presidential prerogative. The basic principles of the Israeli democratic regime necessitate the imposition of a review mechanism for the President’s exercise of the power to pardon. This process is expressed in the statutory requirement that the Minister of Justice must countersign and in the discretion he exercises with respect to the issue of the countersignature. The countersignature, through which the Minister of Justice assumes parliamentary responsibility for his actions, thus enables both parliamentary and judicial review of the exercise of the pardon power. This necessary review process does not grant the Minister of Justice a veto right. The Minister may exercise his discretion to refuse to countersign only in extreme and unusual circumstances – such as when he is persuaded that the pardon decision has been reached improperly. The narrow scope of the Minister’s discretion also reduces the concern that political considerations will enter into the pardoning process.

 

Concurrence in part (Justice Levy) – The discretion given to the Minister of Justice does not allow him to refuse to sign when he finds the President’s decision unreasonable, but only when he finds that decision to have been based on irrelevant considerations, that it was made in bad faith or that it is ultra vires.

Minority opinion (Justice Danziger) – The Minister of Justice has no discretion with respect to the countersignature requirement, as the power to pardon has been given only to the President of the State. The entire purpose of the countersignature is to ensure that all relevant material is submitted to him for review and that there were no errors whatsoever. The possibility of the exertion of political pressure on the President – through a grant of discretion to the Minister of Justice – creates the potential for prior understandings between the President and the Minister. The indirect judicial review mechanism described in the judgment in the original petition is the preferred review mechanism with respect to the presidential pardoning power. 

 

Petition granted. Respondent’s matter to be returned to the Special Parole Committee, to the President of the State and to the Minister of Justice.

 

     Legislation cited:

Basic Law: The President of the State, ss. 11(a)(1), 11(a)(3), 11(a)(5) –(6), 11(b), 12, 16.

Palestine Order in Council, arts. 6, 16.

Release from Imprisonment on Parole Law, 5751-2001, s. 29.

Transition Law, 5709-1949, s. 6.

 

Israeli Supreme Court cases cited:  

 

[1]       FH 13/60 Attorney General v. Matana [1962] IsrSC 16 430.

[2]       HCJ 428/86 Barzilai v. Government of Israel [1986] IsrSC 40(3) 505.

[3]       HCJ 177/50 Reuven v. Chairman and Members of the Law Committee [1951] IsrSC 5 737.

[4]       CrimA 185/59 Matana v. Attorney General [1960] IsrSC 14 970.

[5]       HCJ 706/94 Ronen v. Minister of Education and Culture [1999] IsrSc 53(5) 389.

[6]       HCJ 73/85 “Kach” Party v. Chairman of the Knesset [1985] 39(3) IsrSC 141.

[7]       HCJ 9631/07 Katz v. President of the State (deleted) (2008) (not yet reported).

[8]       CrimFH 7048/97 Anonymous Parties v. Minister of Defense [2000] IsrSC 54(1) 721.

[9]       HCJ 1637/06 Armon v. Minister of Finance (2010) (not yet reported).

Canadian cases cited:

[10]     Re Resolution to Amend the Constitution [1981] 1 S.C.R. 753.

 

For the petitioner — O. Mandel; E. Amir.

For the respondent — S. Faisal.

 

JUDGMENT

 

President D. Beinisch

The President of the State has the power to pardon offenders and to lighten their sentences, pursuant to the provisions of s. 11(b) of Basic Law: The President of the State (hereinafter also: “the Basic Law”), which provides that “[t]he President of the State shall have power to pardon offenders and to lighten penalties by the reduction or commutation thereof.” Alongside this power, s. 12 of the Basic Law also provides that the signature of the President of the State on an official document – including a letter of pardon or regarding a lightening of a sentence – shall require the countersignature of the Prime Minister or of such other minister as the government shall decide. In a resolution dated 17 April 1949, the Government authorized the Minister of Justice to countersign the President’s official documents regarding pardons and the lightening of sentences (Notice Regarding Countersignature for the Signature of the President of the State, Yalkut Pirsumim [Government Publications] 1949, p. 248). The nature of the countersignature and the degree of discretion that the Minister of Justice may exercise in providing it are the subject of this further hearing.

The main facts

1.    The following facts provide the background for the discussion of the constitutional issue before us in the present case:

In 1996, the respondent, Nir Zohar (whose previous name was Nissim Tzarfati), was convicted of the crimes of murder, rape and kidnapping for the purpose of committing sexual crimes and was sentenced to life in prison. After he began to serve his sentence, while on a furlough from prison, he committed further crimes including extortion under aggravating circumstances, assault, false imprisonment, threatening, possession of a knife, and witness tampering. He received additional prison sentences for these acts.

In 2004, the respondent applied to the President of the State to have the duration of his prison term shortened. In accordance with the standard procedure at the office of the President of the State and the Ministry of Justice, the application was transferred to the Pardons Department at the Ministry of Justice. Pursuant to that procedure, the Pardons Department examines the application and submits its recommendation to the Minister of Justice. Based on this recommendation, the Minister of Justice submits his recommendation to the President of the State. If the recommendation is to grant the application, a letter of pardon or a document approving the lessen sentence is submitted, along with the recommendation, for the President’s signature. If the President grants the application for pardon or for a lesser sentence, the letter of pardon or the document approving the new sentence is delivered to the Minister of Justice for his countersignature. In the case before us, the Pardons Department examined the respondent’s application after receiving opinions from various parties, including, inter alia, the State Attorney, the Israel Police and the Prison Service. Pursuant to s. 29 of the Release from Imprisonment on Parole Law 5751-2001 (hereinafter: “the Parole Law”), a Special Parole Committee reviewed the respondent’s matter as well. The Committee was presented with the relevant information relating to the crimes for which the respondent was convicted and his behavior during the period of his imprisonment. The Committee decided that it was not appropriate to recommend a lighter sentence in light of the severity of the crimes for which the respondent was serving a life sentence and of the crimes he committed during the period of his incarceration. The Committee noted that a person serving a life sentence who seeks to have his sentence lightened should, when making the application, present himself as having behaved appropriately and should establish that there is a chance for a change in his behavior and provide a prediction regarding his future rehabilitation. These factors were not present in the respondent’s application.

2.    Then-Minister of Justice Tzipi Livni accepted the Parole Committee’s conclusion and recommended that the President of the State not grant the application for a lesser sentence. Notwithstanding the Minister of Justice’s recommendation, the then-President of the State, Moshe Katzav, decided to reduce the respondent’s sentence and to set it at 32 years of imprisonment. On 25 December 2005, the letter approving the reduction of the sentence was transmitted from the office of the President of the State for the signature of the Minister of Justice. The Minister, who had, as stated, recommended that the application for a lighter sentence not be granted, asked the President of the State for an explanation of the motivation for the decision to grant the respondent’s application. In response, the legal adviser to the President’s office replied that the decision was based on an improvement that had occurred in the respondent’s behavior. This response did not satisfy the Minister of Justice because – as was argued in the state’s response – neither the factual material provided to the President nor the series of recommendations made to the President mentioned any improvement in the respondent’s behavior. The President did not answer an additional request for clarification sent to him by the Minister of Justice. The Minister of Justice therefore refused to countersign as required pursuant to s. 12 of the Basic Law. The Ministers of Justice who served after Ms. Livni also refused to countersign the letter approving the lighter sentence.

In light of the Minister of Justice’s refusal to countersign, the respondent petitioned this Court, asking the Court to order the Minister of Justice to add her countersignature to the signature of the President of the State. Alternatively, the Court was asked to rule that the document approving the lighter sentence is valid even without the countersignature.

The judgment in the original petition

3.    The Court, by a majority of opinions, with Justice Rubinstein dissenting, granted the appeal and held that the Minister of Justice’s countersignature does not grant the Minister independent discretion as to whether to grant an application for a pardon or to reject it and does not give the Minister a right to veto the President’s decisions. According to the majority view, the countersignature is intended to ensure that all material relevant to the decision has been properly presented and that all actions preliminary to the pardon decision, which involve various administrative parties, have been taken in proper fashion. The majority held that if the President decides to grant the application after the Minister of Justice has ascertained that all the preliminary actions for the approval of a pardon have been carried out properly, the Minister of Justice has no discretion and he must join his countersignature to the President’s signature.

4.    In a broad and comprehensive decision, Justice Levy analyzed the pardon power and the substance of the Minister of Justice’s countersignature. Justice Levy’s position, according to which the countersignature is not intended to grant any decision-making power to the Minister of Justice with respect to pardon decisions, is based on his view regarding the nature of the pardon power and the unique position that the President of the State holds among the government authorities (Justice Levy’s opinion, at para. 9). As Justice Levy noted, the power to pardon is “an original Israeli creation” in the framework of which the President does not act as an executive authority, and the pardon is not an executive act. The President of the State, Justice Levy held, is accorded a position different from that of all other state authorities and the considerations he weighs in examining applications for pardon express a state and social interest based on universal ethics and national interests, not on political considerations, “the main part of which is based on day-to-day and passing matters” (ibid., at para. 10). “The normative environment” of the pardon power in Israeli law, Justice Levy noted, means that the President “alone has the discretion to decide whether and how to exercise it”; he does not act as an executive agency, he is not subject to any policy designed by the government and he “exercises his power in an independent manner” (ibid., at para. 13). The exclusive status of the President of the State and the unique characteristics of the power to pardon lead to the conclusion, according to Justice Levy, that “a clear distinction must be drawn between the government’s part in the pardon process – as the party making a recommendation at the beginning of the process – and the power of the President as the party who is the sole decision-maker at its end” (ibid.). Granting any discretion to the government in the pardon process, through the Minister of Justice’s countersignature, will – in Justice Levy’s view – lead to undesirable results. He wrote as follows:

‘The placement of a veto power regarding the President’s decisions in the hands of other parties can impact on the status of the institution of the presidency, to the point where it would lose its unique character. It could enable the exercise of improper leverage on the President, which would adversely affect his free exercise of discretion. The involvement of party politics in the judicial branch’s final determinations is a formula for the uprooting of the foundations of our democratic system and of the rule of law in its substantive sense. It can lead to a degradation of the judicial process, undermine the sense that justice is being done and do considerable damage to the public’s faith in the state authorities. Moreover, by eating away at the essential boundary between the executive branch and the courts, it threatens to distort justice’ (ibid., at para. 16).

Justice Levy rejected two possible explanations for the countersignature: one, that it is needed as a “connecting link”, the function of which is to enable indirect judicial review of the President’s pardon decisions; and the other, that the countersignature is required for the purpose of verifying the pardon and ratifying the formal constitutionality of the letter of pardon or of the letter approving the lightening of the sentence (ibid., at paras. 24 and 25). Justice Levy offered a third explanation, according to which the purpose of the countersignature is the following:

‘The countersignature is therefore intended to ensure that all the preliminary actions that administrative parties are required to carry out have been carried out properly, that all the relevant material has been collected and submitted to the President of the State for his review, and that the tools that the administrative authorities are charged with providing, and which the President requires for the purpose of making the decision, have been given to him. If the information has been found to be lacking or mistaken; if it is found that a party asking for a pardon has sought to deceive the President . . . ; if it is found that details that were relevant to the decision were omitted either accidentally or intentionally; if it is found that there was a defect in the recommendation given to the President . . . – in each such case and in others, the Minister’s function is to make certain that the needed correction is made before the Minister affixes, as he is required to do, his signature. And once his signature is affixed, it signifies to the administrative authorities that the road towards implementation of a properly grounded presidential decision has been cleared. Thus, the Minister does not interfere with the President’s discretion, but his function is to ensure that the President does have available to him all that is needed for the purpose of exercising the discretion that he has been given’ (ibid., at para. 28).

According to Justice Levy, the particular purpose of the countersignature is to eliminate the key concern involved in the grant of real discretion to the Minister of Justice, i.e., that there will be political interference in the pardon decisions. Political interference, Justice Levy held, “is likely to accord primacy to narrow interests, the promotion of which reflects a temporary opportunity, consistent with a random alignment of powers, over fundamental principles, which are by their nature far removed from the spirit of the times” (ibid., at para. 15). Political intervention, in the guise of a grant of discretion to the Minister of Justice, can also lead, in Justice Levy’s opinion, to a mixture of personal and general interests and to the exercise of the pardon power from a narrow governmental perspective in a manner that detracts from the objective that underlies the institution of pardon (ibid.).

5.    Justice Danziger concurred in Justice Levy’s position and noted that the “power of the President of the State to pardon offenders is a unique power which is held exclusively by the pardoning authority, and it is intended to grant the President, in this area, complete freedom to decide as he wishes and in accordance with his best understanding.” Justice Danziger therefore found that the “countersignature does not confer upon the government’s representative the status of a partner in the decision concerning the matter of pardons, and certainly does not grant the representative any power to decide regarding the pardon decisions made by the President of the State.” Like Justice Levy, Justice Danziger found that once all the relevant material has been laid before the President of the State, the government representative must countersign and has no discretion in carrying out this function.

6.    In contrast to the approach of the Justices holding the majority opinion, Justice Rubinstein held that the Minister of Justice has discretion to refrain from countersigning, but its exercise will “of course occur only in extremely exceptional circumstances” (Justice Rubinstein’s opinion, at para. 9; emphasis in the original - D.B.). Justice Rubinstein agreed that the countersignature serves as a form of review mechanism with respect to the pardon process, but in his view the purpose of the countersignature is more than that. According to him, the Minister of Justice is also authorized to examine the issue of whether irrelevant considerations had been involved in the President’s decision. At the basis of this conclusion was his assumption that “there is a need for review, for those occasions on which it is required, and for preventing the misuse – heaven forbid – of the power. The Minister’s countersignature must serve as a sort of ‘gatekeeper’ for the President” (ibid.). The signature, stated Justice Rubinstein, is not intended to replace or to limit the President’s broad discretion, but to rule out the exercise of discretion “which is unlawful in that it is defective” (ibid.).

7.    The Minister of Justice filed a petition for a further hearing on this judgment. On 5 February 2009, Vice-President Rivlin granted the petition and ordered a further hearing regarding the issues raised in the judgment. The present deliberation followed.

The arguments of the parties

8.    In the petition for a further hearing and articulated pleadings, the State Attorney’s office, acting on behalf of the Minister of Justice, argued that the majority opinion in the judgment had established a rule that contradicts the approach that has prevailed in Israeli law since the establishment of the State. This holding of the majority opinion, it was argued, transforms the President’s authority into an absolute and exclusive power in a manner that is inconsistent with the Israeli constitutional principle requiring checks and balances. In support of this argument, the State Attorney cited a series of this Court’s rulings and of writings of learned scholars on the subject, which indicate that the Minister of Justice has the authority to investigate the President’s decision regarding a pardon; to review it; to exercise discretion before countersigning the letter of pardon or an approval of a sentence reduction; and, as a practical matter, in exceptional circumstances, to prevent the pardon by refusing to provide the countersignature. According to this argument, a similar conclusion is to be drawn from the deliberations in the Knesset prior to the enactment of s. 12 of the Basic Law: The President of the State, which indicated that the Members of the Knesset had examined the possibility of adding letters of pardon to the list of documents that do not require a countersignature, but that this proposal was rejected. It was also argued that the Knesset Proceedings show that the Knesset was aware of the possibility that the relevant minister might refuse to sign and nevertheless chose to grant that minister the discretion that would allow him to oversee the President and thus prevent a situation in which a sensitive power would be conferred upon a single party without there being any process for reviewing his decisions. In this context, it was noted that the possibility of challenging the President’s decision indirectly would not constitute a suitable alternative to the direct review involved in a countersignature requirement.

In the articulated pleadings in the petition, the State Attorney’s representative also referred to the main argument on which the majority opinion is based – the concern regarding political intervention in judgments rendered by the judiciary. Her view was that there is no real cause for concern regarding such involvement since a court’s decision can be changed only when there is a double signature – one from the President and one from the Minister of Justice. In a case in which the Minister of Justice recommends that a petition be granted but the President does not accept the recommendation, the court’s decision remains in place. As such, it was noted, “a power that is within the discretion of the Minister of Justice may lead to the non-approval of the pardon – i.e., to non-intervention in the judicial authority’s determination – but never to the opposite” (emphasis in the original - D.B.). In addition, it was noted that the concern regarding political intervention is reduced in light of the fact that the Minister of Justice acts with transparency in a professional legal environment and his decisions are subject to parliamentary review and direct judicial review.

As a marginal point, it was argued in the name of the Minister of Justice that the judgment establishes a new rule and that an operative final order had been given without an order nisi having been issued and without the Minister of Justice and the Attorney General being given an opportunity to present their fundamental positions on the issue, which they are only able to raise now in the context of the further hearing.

9.    The argument was made in the respondent’s articulated pleadings that the judgment provides a suitable explanation of the scope of the Minister of Justice’s authority, which is limited to ensuring the propriety of the administrative process that precedes the President’s decision. The limited scope of the countersignature, the respondent argued, results from the exalted position of the institution of the presidency, which is undisputed. The President is not required to provide reasons for his decisions. It was further argued that the majority position does not contradict the prevailing approach in Israeli law and the decision merely overturned the “tradition” that had been adopted by Ministers of Justice in the past. Regarding the application for pardon submitted by the respondent, it was argued that the State had acknowledged in its pleadings that the material submitted to the President is the same as the material viewed by the Minister of Justice. Hence, the respondent argued, the current Minister of Justice should be ordered to add his signature to that of the President of the State and conclude the process of reducing the sentence.

Discussion

10.  This further hearing raises questions relating to the nature of the pardon power of the President of the State and the nature of the countersignature required for a decision to pardon or to lighten a sentence. The countersignature has been mentioned in the past in this Court’s case law, but its nature and the scope of the discretion granted to the Minister of Justice in the context thereof had not been examined directly or comprehensively until the judgment in the original petition. The precedential nature of the subjects discussed in the petition, as well as the fact that they relate to the exercise of a unique power granted to the President of the State, form the basis of this further hearing. I will first state that for the reasons described below, I have decided to join in the conclusions reached in Justice Rubinstein’s minority opinion in the judgment in the original petition. In my view, the majority opinion is very problematic.

Although the present deliberation focuses on the Minister of Justice’s countersignature, it also raises serious constitutional questions. A determination that the countersignature grants only limited discretion to the Minster of Justice (the view adopted by the majority opinion in the judgment in the original petition) or alternatively, that the Minister of Justice may, in exceptional circumstances, prevent the pardon through a refusal to provide a countersignature (as per Justice Rubinstein’s minority opinion) will have significant consequences regarding the power to pardon and regarding the institution of the presidency and its place among the state authorities. The dispute raises a number of questions necessitating the determination of basic presumptions as a starting point of the discussion: Is the exercise of the power to pardon subject to review? Is the elevated position of the President of the State such that the principle of separation of powers does not apply to the exercise of his authority? Does the fact that the power to pardon allows the President of the State to intervene in the activity of other branches affect the analysis of the nature of the countersignature? These are some of the questions that must be answered in our deliberation, which by its nature is influenced by various factors, including the unique characteristics of the power to pardon; the status in our regime of the party wielding the power to pardon, i.e., the President of the State; and the rules established in this Court’s case law regarding the ability to review the President’s decisions, either directly or indirectly.

11.  This is not the first time that the power to pardon has been discussed in depth by this Court. In a number of earlier judgments, basic principles were established with regard to the status of the President of the State as the holder of the power to pardon and criteria were formulated for the exercise of this power. The basic principles established in this case law will guide us as we examine the significance of the countersignature. Two basic principles, in particular, will inform our discussion. The first is that the power to pardon is “a part of the fabric of our democratic lives” and must therefore be interpreted “with a broad view” (FH 13/60 Attorney General v. Matana [1], at p. 442, per Acting President Agranat), as this phrase was interpreted by Justice A. Barak in HCJ 428/86 Barzilai v. Government of Israel [2], at p. 581). The significance of a “broad view” is that “we must view the presidential powers as part of the general distribution of powers among the State authorities” (ibid. [2], at p. 595). This means that in interpreting the power to pardon and the countersignature that accompanies it, we must take note of the system of government, the legal system, and the original intent behind the enactment of the Basic Law: President of the State, as well as the legal tradition that has developed since the establishment of the State through to the present time.

12.  The second principle, which is related and ancillary to the first, is to be found in a determination that has been established in our case law over the years – a determination that the institution of pardons in Israel, in the format that has taken shape under our system of government, is an original Israeli creation. It is true that the power to pardon is recognized in various systems of government and that the Israeli power to pardon was originally born prior to the establishment of the State, in art. 16 of the Palestine Order in Council of 1922 which delegated the English monarch’s pardoning power to the High Commissioner; however, in a long line of judgments, this Court has held that the power to pardon is no longer intrinsically related to the English monarch’s power to pardon, but is instead an original, independent and primary power (see, for example, HCJ 177/50 Reuven v. Chairman and Members of the Law Committee [3]; CrimA 185/59 Matana v. Attorney General [4]; Attorney General v. Matana [1]; Barzilai v. Government of Israel [2]). It is interesting to note that although in almost all of these key cases there were disagreements among the justices regarding the scope and nature of the power to pardon, the decisions did establish a clear rule: even though the English monarch’s power to pardon constituted the historical source of the Israeli power to pardon, Israeli courts are not “held captive by our legal heritage and that we lack the vigor to fashion our own constitutional doctrines” (ibid. [2], at p. 534, per President Shamgar).

This basic principle – of the creation of an original power of pardon, separate from the parallel British power – is of great significance in defining the characteristics of the power to pardon and the countersignature. At the basis of this principle is a determination that the President’s power to pardon is not in the nature of a prerogative, as is the English monarch’s power, the exercise of which is not subject to any qualification, limitation or review. This is because the powers and status of the President of Israel are not the same as the status and powers of the English monarch. This Court has previously held that because the President’s power to pardon is original, it must be interpreted in accordance with “Israeli conditions” and in accordance with the law followed in Israel and the normative environment in which the power is exercised in Israel.

13.  An examination of the pardon power from a “broad perspective”, as well as an examination of the impact of the system of government in Israel on the scope of the power and on the nature of the Minister of Justice’s countersignature, leads, in my view, to a different position from that presented by the majority justices in the judgment in the original petition. As stated, the judgment establishes that “the legislature’s instruction, in enacting the Basic Law: The President of The State, was that the President would enjoy independence in exercising his discretion pursuant to the law” (per Justice Levy, at para. 11). The majority justices therefore held that the Minister of Justice has no discretion when joining his countersignature to the President’s signature and the Minister’s function is one that is carried out in full at the stage preceding the decision: checking the completeness and veracity of the factual background presented to the President, which the President requires for deciding the petition. According to the justices concurring in the majority opinion, once the Minister of Justice has transferred the relevant factual material to the office of the President and the President’s decision has been made to either grant a pardon or approve the lightening of a sentence, the Minister is required to attach his signature to that of the President – even if the Minister believes that the application for a pardon or for a lighter sentence should not be granted and even if he believes that the President’s decision is extremely unreasonable or motivated by irrelevant considerations. In the view of the majority justices, the only way to review those decisions to pardon or to lighten a sentence that appear to be improper is through an indirect review of the President’s decision, if various parties within the executive branch were to refuse to carry out the President’s decision to pardon or to lighten the sentence.

In my view, the position of the majority justices is inconsistent with one of the fundamental principles of the democratic system in Israel. The majority position gives the President an absolute power, which remains unchecked and is subject to no review, in a manner that is inconsistent with the concept of checks and balances that characterizes Israeli government and Israeli democracy. It is precisely the uniqueness of the pardoning power – the exercise of which involves extra-judicial considerations of kindness and of mercy; which is not subject to any requirement that reasoning be provided; and the result of which might be intervention in and modification of the activity of any of the other three branches of government – that necessitates the existence of a control and review process, even if that process is reserved only for exceptional cases in which a concern arises that the President’s decision is tainted by an extreme degree of unreasonableness or is motivated by irrelevant considerations.

The judgment of the majority justices in the original petition would seem to confer upon the President of the State and his high office a degree of idealization that is inconsistent with the democratic perception of the Israeli regime. The President does indeed symbolize the state and he has a broad and exceptional power to cancel or modify the acts and decisions of the legislature, the executive and the judiciary with regard to pardons. The President of the State is not a part of any of these authorities, but our legal system nevertheless does not treat the individual who is the head of the state and who symbolizes its values as a personality with unique qualities that vest in him the powers of an absolute monarch. We are all obliged to respect the President, who expresses the sovereignty of the state, but we would all agree that he does not stand above all those values that are the product of the Israeli democratic system. The President is also a human being and we cannot ignore the fact that in unusual and exceptional circumstances – which it is to be hoped will never occur – the President can also, heaven forbid, do something which is out of the ordinary or deviational, having been motivated by irrelevant or improper considerations.

Indeed, those justices who supported the judgment in the original petition agree that it is proper, under appropriate circumstances, to maintain a review process regarding the President’s decision. The principal disagreement turns on the question of whether the main review mechanism is to be found in the countersignature, as my colleague Justice Rubinstein believes, or whether it is to be found, as my colleagues Justice Levy and Justice Danziger held, in a review of the administrative measures that may be carried out after the pardon decision has been made.

As stated, and as will be elucidated below, the mechanism that ensures that there is a review, and which is in conformity with the main principles of the democratic system of government in Israel, is the Minister of Justice’s countersignature and the discretion granted to the Minister in the framework of that signature. A consultation and preparation mechanism is available to the Minister of Justice prior to the time at which he formulates his position regarding the countersignature. This mechanism provides the Minister with the professional tools needed for assessing the petitions for pardon for the purpose of formulating his recommendation to the President of the State. This professional mechanism operates with transparency and is subject to the rules that apply to all actions of administrative agencies. This enables parliamentary and judicial review of the exercise of the Minister of Justice’s discretion; this review is not dependent on the decisions of various parties within the executive branch to either uphold or refrain from upholding a pardon decision. Such review and control should be exercised in the spirit of the unique power granted to the President of the State, taking note of his exalted position in Israel. As will be described below, in my view, the type of review of the power to pardon that is expressed in the countersignature is not the equivalent of a “veto” right held by the Minister of Justice as my colleagues, the majority justices in the judgment in the original petition, believe; rather, it is the equivalent of a discretionary authority, the exercise of which is subject to the exercise of discretion by the President of the State.

14.  The following interpretative discussion begins with the language of the statute and the manner in which the power to pardon and the countersignature have been interpreted in this Court’s case law, with the comments made by Members of Knesset during the process of the enactment of the Basic Law, and with the writings of scholars who addressed the issue. A review of all three indicates that the President of the State was indeed given broad power to pardon offenders or to lighten their sentences, but at the same time, the Minister of Justice was given discretion, the aim of which is to enable parliamentary review and indirect judicial review over the exercise of the President’s power. This conclusion is also supported, as we will see below, by the basic principles that apply to the pardoning power under Israeli law. These basic principles, in my view, lead to a conclusion that this is not an unlimited power. Notwithstanding the broad scope of the power to pardon, it must be viewed against the background of Israel’s system of government and in light of the principle of separation of powers. Accordingly, there is – and there should be – a review process for the exercise of the power to pardon, which is expressed in the Minister of Justice’s countersignature. We will also examine, below, the question of whether the practice that has developed with respect to the exercise of the power to pardon reaches the level of a constitutional convention – a convention according to which the pardon or the lessening of a sentence takes effect only upon agreement between the President of the State and the Minister of Justice. We will conclude the discussion with a reference to the concern that lies at the basis of the majority view in the decision: the fear of political intervention in the pardon process.

Interpretation of the statutory provisions of ss. 11 and 12 of the Basic Law: President of the State

15.  As stated, the original source of the Israeli power to pardon can be found in art. 6 of the 1922 Palestine Order in Council, by virtue of which the High Commissioner was authorized to pardon offenders and to grant releases from fines and sentences. (For the history of the Basic Law: President of the State and interpretation thereof, see M. Landau, Commentary on the Basic Laws: Basic Law: President of the State (1994), at p. 33 (hereinafter: “Commentary on the Basic Law”). With the establishment of the State, the High Commissioner’s powers were transferred to the Provisional Government. The Constituent Assembly, which became the First Knesset, enacted the Transition Law, 5709-1949 (hereinafter: “Transition Law”) and determined in s. 6 thereof that the President of the State would be authorized to pardon offenders and to reduce their sentences. This section was repealed in 1964, with the enactment of the Basic Law: President of the State, when it was replaced by the power to pardon prescribed in s. 11(b) of the Basic Law.

Section 11 of the Basic Law deals with the functions and powers of the President of the State. Thus, for example, s. 11(a)(1) provides that the President “will sign every law, other than a law relating to his powers”; he will “receive from the Government a report on its meetings” (s. 11(a)(3)); he will “sign such conventions with foreign states as have been ratified by the Knesset” (s. 11(a)(5)); and will “carry out every function assigned to him by law in connection with the appointment and removal from office of justices and other office-holders” (s. 11(a)(6)). Alongside the President’s functions, s. 11(b) establishes the President’s power to pardon and to lighten sentences:

11(b).          The President of the State shall have power to pardon offenders and to lighten penalties by the reduction or commutation thereof.

The President’s broad power is qualified by the countersignature requirement in s. 12 of the Basic Law:

12. The signature of the President of the State on an official document, other than a document connected with the formation of a Government, shall require the countersignature of the Prime Minister or of such other Minister as the Government may decide.

Section 12 does not distinguish between the different types of official documents for which a countersignature is required, other than establishing an exception in the case of a document concerning the creation of a government or the dissolution of the Knesset. It thus also establishes a requirement for a countersignature of pardon documents or documents approving a lightened sentence.

Section 11 creates a distinction between the functions assigned to the President and the power given to him to pardon offenders. This distinction is both linguistic (the President’s functions are described as mandatory acts, as opposed to the pardoning power which is described as including a discretionary component) and structural (s. 11(a) is devoted to the President’s functions, while s. 11(b) is devoted to the power to pardon). This distinction between the functions and powers has two main ramifications. First, the distinction affects the scope of the discretion given to the President. While the President’s functions are mandatory functions, which he must carry out by virtue of the law and which do not allow him any exercise of discretion, the power to pardon grants presidential discretion: he may exercise it in a particular case or he may refrain from exercising it (see Landau, Commentary on the Basic Law, supra, at p. 23). Second, it has been argued in the past that the distinction between functions and powers has implications for the countersignature and the discretion that is conferred in its framework. In relation to a function which involves no real discretion, the countersignature also lacks any discretionary component and remains, at its core, a ritual and formal act. By contrast, when the President is authorized to exercise discretion, as he does in the case of the power to pardon, the signing minister is also accorded corresponding discretion (see Landau, Commentary on the Basic Law, supra, at p. 50; on the constitutional framework of pardons in Israel, see also Y.H. Klinghoffer, 27 Ha’uma 320 (1969), at pp. 325-26, text included in an essay by L. Sebba, Personal Pardon and General Pardon – Legal and Phenological Aspects 105 (Doctoral Dissertation in Law – Hebrew University, 1975)).

16.  Support for this position can be found in the two types of documents for which a countersignature is not required: documents relating to the formation of a government and a document in which the President resigns from his position. It is undisputed that in these two areas there is no need – and that it is in fact undesirable – to grant a minister or the government any discretion in the form of a countersignature requirement. This is so because it would not be desirable to give the government or one of its ministers any discretion that could impact on the President’s decision to charge a particular Member of Knesset with the task of forming a government. Similarly, as a matter of course, no governmental discretion should be exercised regarding a President’s decision to resign from his position. It may be understood from those documents for which a countersignature is not required that when the legislature believed that review accompanied by an exercise of discretion by a minister or by the government was not required, the relevant documents were removed from the purview of s. 12 of the Basic Law. Thus, the decision to leave the pardon documents within the scope of s. 12 means that the signing minister is given substantive discretion and the parliamentary responsibility is transferred to his shoulders. Indeed, during the process of the enactment of the Basic Law, a number of Members of Knesset submitted reservations regarding s. 12 and asked to include pardon documents and documents approving the lessening of sentences in the list of documents that do not require a countersignature so that the President “would not be limited and blocked in any manner whatsoever” (in the words of MK Y. Kushnir, Knesset Proceedings 40 (1964), at 2085). These reservations were rejected. Then-Minister of Justice D. Yosef, clarified that the Minister of Justice would not have a veto right over pardon decisions, but the President and the Minister of Justice would have a professional and refined relationship. In the words of D. Yosef:

‘The Minister of Justice, like others, has a relationship with the President and he also knows what is stated in the law. He knows that if the President insists on a particular matter, the Minister of Justice cannot just say “no”. In such a case, they will discuss the matter between themselves, and each will try to persuade the other one, but in any event, the decision to grant a pardon is in the hands of the President alone, although the Minister of Justice must verify his signature’ (ibid., at p. 2086).

17.  This Court’s case law has adopted a similar position. Although, as my colleague Justice Levy noted, the Court has not dealt directly with the nature and scope of the countersignature, a reading of the decisions dealing with the power to pardon and the Minister of Justice’s countersignature indicates that the Court has presumed – as a matter needing neither proof nor preliminary discussion – that the Minister of Justice may exercise discretion before he affixes his signature to letters of pardon or to documents approving the lightening of sentences. Thus, for example, in Reuven v. Chairman and Members of the Law Committee [3], Justice S. Agranat noted the following with regard to the power to pardon pursuant to the Transition Law, which was later replaced by the Basic Law: President of the State:

‘The supervision exercised by the person standing at the head of the state’s legal system – the Minister of Justice – can be seen as a sufficient guarantee of protection of the public and of the preservation of the good name of the prosecutor’s profession. That Minister is in a position to recommend granting a pardon, since in the end, he is the one who is authorized to uphold – if he sees fit to do so – the President’s signature on a pardon letter’ (ibid. [3], at pp. 755-756).

Similarly, in Attorney General v. Matana [1], Justice Z. Berinson noted that:

‘The final decision [regarding pardons] is in the President’s hands, but it appears that he is guided by the investigation and preparatory work which is carried out by the governmental branch, and he acts in accordance with its advice. It transpires that from a practical perspective, this branch is very involved in each specific decision and regarding the general pardon policy, and in any event, without its after-the-fact consent, as manifested in the Minister’s countersignature, the State President is unable to grant a pardon’ (ibid. [1], at p. 472).

In the same case, the Acting President (S. Agranat) noted the following:

‘Every act of pardon on the part of the President requires a countersignature of the Prime Minister or of one of the ministers in the government . . . . This means that even if the decision to pardon or to reduce a sentence must be the personal decision of the President, it is also conditional upon the recommendation of the minister concerned. This minister will ordinarily be the Minister of Justice, who has the means of conducting a detailed investigation into the circumstances of the case before submitting his recommendation to the President. It is clear that this recommendation, and therefore the decision to pardon as well, are subject to review by the Knesset and it is this possibility which must be regarded as the guarantee laid down by law against the danger referred to’ (ibid. [1], at p. 454).

See also the ruling of Deputy President Ben-Porat, who cited with approval these comments of the Acting President and noted that “[t]here is therefore someone who is answerable to the Knesset (the Prime Minister or the ratifying minister) and this safeguard is now fortified by the possibility of challenging the pardoning decision indirectly” (Barzilai v. Government of Israel [2], at p. 581). Finally, Justice Cheshin held unequivocally, in HCJ 706/94 Ronen v. Minister of Education and Culture [5], as follows:

‘We should recall that a letter of pardon – like any official document that the President handles, other than a document regarding the Knesset’s dissolution – requires a countersignature by the Prime Minister or by another minister as decided by the government (s. 12 of the Basic Law: President of the State). An act of pardon or of a reduction of a sentence is therefore a matter of combining one opinion with another: that of the minister with that of the President. Only when there is this combination of views will there be a pardon or a lightening of a sentence.’

18.  Similar comments have been made by most of the scholars who have dealt with the issue. Thus, for example, Prof. C. Klein has noted that the countersignature “symbolizes the assumption of political responsibility by the minister who gives the countersignature” (C. Klein, ‘Panel Discussion on the Subject of Pardons’, 15 Mishpatim 9 (1985), at p. 6). See also Professor Y.H. Klinghoffer’s comments at a symposium on the pardon power:

‘Can these two members of the government – the Prime Minister and the Minister of Justice – refuse the President of the State and refrain from providing a countersignature? The problem exists not only with regard to the grant of a pardon; it also relates to the actions of the President in general. I believe that the answer depends on the nature of the President’s action. If the President is required by law to take this action – if the action is, for example the appointment of a justice whom the current Appointments Committee . . . has proposed – then there is also a requirement to provide the countersignature. On the other hand, if the law grants the President discretion regarding a particular matter – if the President can choose, as he wishes, whether or not take the action – then the member of the government has the same discretion and the same choice with respect to the countersignature. The power to pardon offenders is a power involving discretion. Therefore, the member of the government may, in accordance with his discretion, refuse to provide his signature and by thus refusing, prevent the pardon from taking effect. This also appears to be the correct interpretation, when one considers that the purpose of the countersignature . . . is that the government bear parliamentary responsibility for the acts of the head of state’ (Y.H. Klinghoffer, The Constitutional Framework of the Pardon – Symposium on Pardons in Israel (1968), at p. 6).

See also the position taken by A. Rubinstein and B. Medina in their book, Constitutional Law of the State of Israel (2005), at pp. 1062-63. See also Z. Segal, Israeli Democracy (1998) at p. 196; B. Bracha, “The Constitutional Position, the Pardoning Power and Other Powers of the President of the State of Israel”, Israel Yearbook on Human Rights (vol. 9, 1979) 190, at pp. 202-203 (1979). See also the comments of Justice (Emeritus) Landau in his Commentary on the Basic Law:

‘It could have been argued that the purpose of the countersignature is only to confirm the validity of the President’s signature on the letter of pardon, which is given only after the President has formulated his position and expressed it in the written document, to which the addition of a countersignature is a function that is imposed on the Minister as a requirement. However, this is not the accepted view and it is also not the custom that has developed concerning this subject. The custom is that the Minister carries out an active role of his own in the process of granting or refusing to grant the pardon. The main reason given for this version of the significance of the countersignature is that the Minister bears parliamentary responsibility with respect to this matter and he must explain to the Knesset, when such explanation is needed, why the pardon was given to a particular party, or why the pardon was not given’ (Commentary on the Basic Law, supra, at p. 42).

19.  A review of the statutory language and interpretations thereof regarding the power to pardon and the countersignature, both in this Court’s case law and scholarly writing on the issue, indicates that the main position adopted under our law is that the countersignature requirement confers discretion upon the Minister of Justice. This is the case even if we allow that the question of the status of the countersignature has been discussed only in dicta accompanying a discussion of the power to pardon, rather than being ruled upon directly. This interpretation, as we will see below, also conforms to the practice that has developed, as a practical matter, with respect to the exercise of the power to pardon. The central importance of this interpretation can be found, in my view, not only in the fact that it conforms to the statutory language and customary practice, but also, primarily, in the fact that it is consistent with the basic principles of Israel’s system of government.

The normative framework of the power to pardon, in light of the fundamental principles of Israel’s system of government

20.  As stated, the source in our law of the power to pardon is the power established in the 1922 Palestine Order in Council in the framework of the British Mandate for Palestine. The circumstances of the birth of the Israeli pardoning power under the shadow of English law has engaged this Court since its earliest days, beginning with decisions that examined the new state’s pardoning power, which was established in the Transition Law and, later, in the Basic Law (see Reuven v. Chairman and Members of the Law Committee [3]; Matana v. Attorney General [4]; Attorney General v. Matana [1]; Barzilai v. Government of Israel [2]). The question that runs through this Court’s case law concerns the impact of the English monarch’s power to pardon on the power to pardon in Israel, in light of the transfer, with certain changes, of the High Commissioner’s powers to the Provisional Government, and with the establishment of the State, to the President of the State. The question arose in our case law in the context of a discussion of the scope of the pardoning power. Thus, for example, in Reuven v. Chairman and Members of the Law Committee [3], a question arose as to whether the grant of a pardon meant an erasure of the crime with all its consequences; in Matana v. Attorney General [4] and in Attorney General v. Matana [1], the Court examined the issue of whether the pardoning power also includes the power to commute a prison sentence to a suspended sentence; and in Barzilai v. Government of Israel [2], the question arose as to whether the pardoning power allowed the President of the State to pardon a person before he had been convicted at trial, based on the pardon of the General Security Service men in the “Bus 300 Affair”.

21.  A review of these decisions and other decisions examining the power to pardon reveals that a clear rule has been formulated over the years, according to which the Israeli pardoning power is not a direct continuation of that of the English monarch. “I cannot say,” Justice Z. Berinson stated in Attorney General v. Matana [1], “that the Israeli legislature, in granting power to pardon to the President of the State in the Hebrew language, intended to include in it all the content that the concept of pardon had acquired over the generations in English law – a pardon which comes entirely from the Crown, without any qualification or limitation, by virtue of an ancient royal prerogative” (ibid. [1], at p. 976). This Court has held that the Transition Law, and following it, the Basic Law, “are original Israeli laws” and the President’s powers prescribed in them are “autonomous and original. The Israel legislature, far from ‘copying or omitting’” had built an “independent structure”, “which must be construed as such by the courts” (Barzilai v. Government of Israel [2] at p. 594, per Justice Barak). In the framework of this independent structure, the pardoning power was given to the President of the State who, according to s. 1 of the Basic Law, stands at the head of the state. The determination that the President stands at the head of the state is primarily symbolic and serves to emphasize the parliamentary nature of the State of Israel, as distinguished from states with a presidential system of government, in which the President heads the executive branch (see Landau, Commentary on the Basic Law, supra, at p. 12). The power to pardon grants the institution of the presidency the status of a sort of separate authority– “the pardoning authority,” as Justice Cohn called it – which is conferred on the President of the State as the entity who “in his person, represents the State itself” (Matana v. Attorney General [4], at pp. 463 and 465 respectively).

The nature of the Israeli institution of the presidential pardon, as an independent authority which is detached from the pardoning power of the English monarch, means that the power to pardon should not be viewed as a presidential prerogative, the exercise of which is free of any qualifications or limitations. The English prerogative power is based, as is known, on the fact that the English monarch is perceived as being the source of justice and law, which is not the case with the President of the State under our system of government. At the same time, the decision to confer the power to pardon on the President of the State, who does not stand at the head of the executive branch in Israel, means that the pardoning power should not be seen as one which is controlled by the executive branch, even if it has executive characteristics. The pardoning power falls between these two ends of the spectrum. It does not grant the executive branch any extra weight in the pardon process, but it also does not place exclusive and absolute power in the hands of the President. The pardoning power, like many governmental powers in democracies in general and the Israeli system of government in particular, is the outcome of a delicate balancing act. The Israeli statute, as the above discussion shows, favors the middle road and grants the President of the State a broad power which may be exercised in accordance with the President’s discretion, but it is accompanied by processes that provide for the review of the exercise of that power. The key review process, as described below, is the countersignature requirement.

22.  The pardoning power and the processes for reviewing the exercise of that power are directly tied to the status of the President of the State in Israel. The President symbolizes the state and its democratic system of government and represents social and national unity, as expressed in the series of functions that are given to him, which demonstrate his official position.

It is not for nothing that the power to pardon is given to the President of the State, the individual who has the ability to weigh considerations that are not limited by the boundaries of the black letter law. Indeed, the pardoning power is a unique and special power. It is not exercised in accordance with fixed rules and the discretionary element is central to it. The exercise of the power combines considerations of kindness and mercy, which involve an element of forgiveness and absolution, together with considerations relating to the good of the public as a whole. “The key concept behind the pardoning power,” Deputy President Agranat wrote in Attorney General v. Matana [1], “is that in the use of this power there is a note of forgiveness and atonement; its exercise involves the element of mercy, as opposed to the element of strict law; the significance of this act is that a kindness is done for the person who is pardoned” (ibid. [1], at p. 445). For this reason this Court has held, in its case law, that we require “special legal rules” when we examine pardon decisions, since “we cannot nor would it be appropriate to apply [to pardoning considerations] the same administrative legal rules that ordinarily apply to the decisions of other government or administrative authorities” (Ronen v. Minister of Education and Culture [5], at p. 414, per Justice Cheshin).

23.  Nevertheless, we should recall that the unique nature of the power to pardon lies not only in the considerations that are weighed when the power is exercised; it is also evidenced by the fact that the pardoning power, by its nature, involves intervention in the activity of the other state authorities. The grant of a pardon or the reduction of a sentence imposed on an offender involves intervention in a determination made by the judicial branch, which has rendered a judgment and imposed a penalty. It is also an intervention in the work of the executive branch, which has investigated and tried the person and is responsible for the execution of the sentence. In certain cases, the grant of a pardon or the lessening of a sentence is also an intervention in the activity of the legislative branch. This is the case, for example, when a statute establishes minimum sentences for a particular crime or requires that a suspended sentence be imposed, and their imposition is thwarted by the pardon. The combination of the broad discretion involved in the exercise of the power to pardon and the power held by the President of the State to change decisions and determinations made by the other branches is what makes the power to pardon a special power with unique strength. In effect, the question to be determined in this further hearing is whether this unique nature of the pardoning power justifies its exemption from the review processes that are standard in the Israeli system of government, the review and control exercised by the Knesset and the judicial branch being chief among them.

In my view, the answer to this is a negative one. Indeed, it cannot be said that the pardoning power is the only governmental power which, when exercised by one branch of government, has the effect of modifying the acts of other branches. However, it is generally the case that in order to preserve the basic principle of “checks and balances” that is standard under democratic rule, the work of one branch is, at different levels, subject to the review exercised by the other branches. Therefore, the view that the President of the State is not subject to any means of review when exercising the power to pardon conflicts with the letter and the spirit of the Basic Law and with the parliamentary nature of the Israeli system of government, which is a “system that recognizes an organizational separation between the branches but supports strong cooperation among them” (Claude Klein, “On the Legal Definition of a Parliamentary System and on Israeli Parliamentarism” in 5 Mishpatim 308 (1974), at p. 315). Such a position would undermine the principle of separation of powers that is a foundation of the Israeli system of government and requires, on the one hand, a separation of powers between the various branches, and on the other hand, the exercise of mutual control among them (see Rubinstein and Medina, Constitutional Law, supra, at pp. 127-128). The basis of the idea of the separation of powers is not a “dictatorship of each branch within its own framework”; rather, there is a “mutual check and balance among the various branches. There are no walls between the branches – rather, there are bridges of checks and balances” (HCJ 73/85 “Kach” Party v. Chairman of the Knesset [6], at p. 158, per Justice Barak). A determination that the President of the State exercises the power to pardon independently, without being subject to substantive review – the major component of which is, in my view, the discretion given to the Minister of Justice in the framework of the countersignature – undermines one of the main principles of the Israeli system of government and would transform the power to pardon into an absolute power that has no place in a democratic regime. In a similar context, Justice Barak quoted the words of Justice Douglas to the effect that absolute powers are “the beginning of the end of liberty” (Barzilai v. Government of Israel [2], at p. 588). As President Shamgar noted in that case, “the conferment and exercise of all power can and should properly be subjected to supervision and review” (ibid. [2], at p. 562). This rationale is valid with respect to governmental powers in democratic regimes in general, and also to a power given to the President of the State despite, and precisely because of, his exalted position in our State. Justice Barak’s remarks in Barzilai v. Government of Israel are particularly apt:

‘During the era of absolute rule, when the power of pardon was wielded by the sovereign himself, there would have been little point in examining the division of authority among the different governmental organs. The ruler held supreme authority, and was therefore entitled to grant a pardon (individual or general) when so disposed, before or after conviction or the conduct of an investigation. It is different in a democratic constitutional regime. The sovereignty there lies with the people, the ruler is no longer omnipotent, and the rule itself is divided among the different authorities. Each has to function within its own sphere, though in general synchronization with the others and subject to mutual checks and balances. It is not in keeping with the democratic character of the regime that any authority, be it the President himself, should hold a paramount power which enables it to change a decision of any of the other authorities which have acted within their responsibility in the framework of criminal proceedings. Such a power may be fitting for an absolute ruler who wishes to show grace to his subjects, but is alien to a holder of high office who wants to serve his subjects’ (ibid. [2], at p. 601).

24.  Moreover, the power to pardon not only stands against the background of the principle of the separation of powers; the power expresses that principle since it is a type of control over the actions of the state authorities. Thus, for example, the power to pardon allows the President of the State to act with the flexibility that is sometimes required (see, regarding this matter, Leon Shelef, “Prison Ends with a Pardon”, 44(1) HaPraklit 72 (2008-2010), at pp. 72-73). A good example of this is the power to limit the sentences of those who have been given life sentences. This power to pardon also allows the President to weigh considerations that the various authorities cannot consider in carrying out their functions, which include considerations of kindness and mercy, or considerations that can justify lessening a sentence due to a person’s physical or mental condition. In addition, the pardoning power enables the “correction” of a criminal conviction when there is a concern that there has been a miscarriage of justice or a legal error. Although it is acceptable to raise such claims during a retrial proceeding in our legal system, they can also be relevant to the exercise of the pardoning power (see also the comments of Justice Agranat in Reuven v. Chairman and Members of Law Committee [3], at p. 747, surveying the development of the pardon in England as a means for correcting an improper conviction; see also Rubinstein and Medina, Constitutional Law, supra, at pp. 1064-1066).

25.  It would therefore be wrong to detach the pardoning power from the separation of powers principle. Indeed, the President of the State enjoys a special status as the “head of state”; he does not belong to any of the other branches of government and “[h]e is a kind of additional authority to those four already existing (the legislative, executive, judicial and supervisory authorities)” (Barzilai v. Government of Israel [2], per Justice A. Barak, at p. 605). However, this status of the President of the State, as well as the fact that the pardoning power is a unique power, are not sufficient to establish that the power is absolute and not subject to review by the other branches (compare Rubinstein and Medina, Constitutional Law, supra, at p. 1061).

At the same time, although the status of the President of the State and the unique aspects of the power to pardon do not justify deviation from the basic principle in a democratic regime recognizing the importance of mutual review, they have an impact on the nature of the review that is carried out by the other branches. It is sufficient in this context to recall, for example, the nature of judicial review of the President of the State, which consists only of indirect review. As is known, by virtue of s. 13(a) of the Basic Law, no legal action can be taken against the President. However, as Justice Cheshin noted, “the statute directs that the President is immune; the statute does not direct that the President’s actions are immune. And indeed, the President’s actions in the legal realm are neither above the law nor external to it, from which it follows that they are subject to review by the courts” (Ronen v. Minister of Education and Culture [5], at p. 412; emphasis in the original - D.B.).

26.  The purpose of the countersignature should be viewed against the background of what has been stated above. It expresses the principle according to which “no action is taken in the state for which there is no responsibility (political or legal)” (Klein, “Panel Discussion on the Subject of Pardons”, supra, at p. 16). The countersignature is intended to enable parliamentary review of the exercise of the pardoning power by the President of the State, who does not appear before the Knesset, is not required to report to the Knesset, and takes action at his own discretion. When the Minister of Justice’s signature is joined to that of the President, the Knesset has the ability to supervise the President’s actions by means of the Minister of Justice, who is able to report to the Knesset regarding the pardon decision. As Minister of Justice D. Yosef noted during the Knesset’s deliberations on the second and third readings of the proposed Basic Law: President of the State, although the pardon is the President’s decision, “parliamentary review of the Minister of Justice’s recommendation to the President is appropriate. The President cannot be reviewed with respect to his decisions, but the Minister of Justice can be reviewed regarding his recommendations” (Knesset Proceedings 40 (1964), at 2086). For a similar view, see L. Sebba’s comments in his treatise on the pardoning power:

‘In a state which is based on parliamentary rule, it is standard to enable the legislative branch to supervise what has been done by the executive branch. The President of the State . . . does, from a certain perspective, stand at the head of the executive branch, although he is not entirely identified with it. Since the President of the State, taking into consideration his high office, does not appear before the Knesset and does not report to it, there is no way for the Knesset to receive reports on his actions or to review them. However, if a confirmation from the Government (or from one of its representatives) is attached to the President’s decision, the Government (or the representative) will be charged with defending this decision’ (L. Sebba, Personal Pardon and General Pardon, supra, at p. 243).

27.  Naturally, it is clear that if the Minister of Justice was obligated to accept the President’s decisions on the subject of pardons without objection or appeal, the Minister’s review (or that of the Government or Knesset) would have no force. Review, as described, is possible only if the Minister of Justice has discretion regarding the decision as to whether or not to attach a countersignature. Thus, “the Minister bears the parliamentary and public responsibility for his signature, and it cannot be imposed on him if he is unable to exercise discretion regarding the matter” (see Rubinstein and Medina, Constitutional Law, supra, at pp. 1062-1063). For this reason, it cannot be said that the countersignature is intended only to verify the President’s signature or to confirm that the administrative acts preceding the Minister of Justice’s recommendation to the President were properly executed. Regarding these two matters, what would be the reason for there to be review, if the Minister of Justice were obligated, at the end of the process, to attach his signature even if he believes that the application for pardon should not have been approved? Only real discretion will allow for the full execution of the review process involved in the countersignature. This was the position taken by Knesset member Y. Shoffman, who sought to exclude pardon documents from the list of documents requiring a countersignature, during the discussion of the second and third reading of the proposed law:

‘The idea [of the countersignature] is that the President of the State does not bear political responsibility, because political responsibility is borne by the Government, and therefore any document that he produces must also receive the Government’s or a minister’s countersignature; and if the Knesset finds that this document is incorrect – it will call upon the Government to bear political responsibility, not the President. This is the idea of this clause, and as I said, it is in full conformity with the entire structure of the institution of the President of the State, as we understood it in the proposed law’ (Knesset Proceedings 40 (1964), at 2084).

28.  An acknowledgement of the Minister of Justice’s discretion regarding the decision whether to attach his signature does not lead to the conclusion that the Minister is a full partner in the pardon decisions. The power to pardon is indeed conferred upon the President of the State and he is the principal authority in this regard. The Minister of Justice carries out an important function within the pardon process, but he must exercise his discretion subject to the fact that the primary power is given to the President. Although the Minister of Justice’s discretion is not limited to the issue of verifying the President’s signature or ascertaining that the factual infrastructure required for the President’s decision is complete, this does not mean that there are no limitations on such discretion. The Minister of Justice’s ability to refuse to affix a countersignature must be limited to exceptional and unusual situations. Generally, these will arise only when the Minister is persuaded that the President’s decision has been influenced by irrelevant considerations, was not made in good faith or suffers from a fundamental material flaw.

29.  A similar interpretation regarding the significance of the countersignature and the manner in which the Minister of Justice’s discretion is exercised can be found in Attorney General’s Guideline No. 4.4002 (1 May 1975, 1 June 2003) entitled “Countersignature for the President’s Signature on Pardons” (Attorney General M. Shamgar’s guideline, and a later guideline of Attorney General E. Rubinstein). The Guideline states that the Minister of Justice has the power to refuse to countersign, although the situations in which this may occur are unusual and extreme. The Attorney General’s Guideline, to which we will return below, states that the rule is that the countersignature will be added. There will “not be many” situations in which the Minister of Justice will refuse to countersign and the “exception in which the Minister expresses his opinion to the President that he is not prepared to provide the countersignature must be that exceptional and extreme situation in which the Minister feels that as a matter of conscience, he cannot take part in the act of pardoning and he cannot defend it at all, from a public or parliamentary perspective.”

30.  The countersignature is, first and foremost, intended to enable parliamentary review of the exercise of the pardoning power. However, alongside parliamentary review, the countersignature also enables indirect judicial review of the power to pardon through a direct attack on the actions of the Minister of Justice. This review is carried out on the basis of the reasons formulated in this Court’s case law. Since the Minister of Justice’s signature is required on every letter of pardon or approval of the lessening of a sentence, indirect judicial review does not depend on decisions taken by elements within the executive branch to uphold or refuse to uphold the pardon decision, as proposed in the opinion of my colleague, Justice Levy. Rather, review is made possible, in principle, with each exercise of the Minister of Justice’s discretion. It should be further noted,            as a side point, that the possibility raised by Justice Levy, to the effect that the review mechanism will operate through the bodies involved in the execution of the pardon, who may refuse to carry out the President’s pardon decision, is not a practical one. Such a scenario would actually confer upon these authorities a power that has not been given to them, the power to review the President’s exercise of discretion.

31.  In conclusion, an examination of the normative framework of the pardoning power in Israel leads to the conclusion that the basic principles of the Israeli system of government mandate review processes regarding the exercise of the power to pardon by the President of the State, which are expressed in the Minister of Justice’s countersignature. The review processes, as noted above, do not equate the power of the Minister of Justice to that of the President of the State; rather, the Minister has the status of an authority who assists the President of the State and can, in exceptional, special and unusual cases, prevent the implementation of a pardon.

This interpretation, which views the countersignature as a tool that enables direct parliamentary review and indirect judicial review of the power to pardon, is not, as stated, foreign to Israeli law. It conforms to the language of the Basic Law and is consistent with its legislative history. It comports with Israeli case law and the writings of most scholars who have dealt with the subject. Moreover, the practice that developed over the years regarding the treatment of application for pardons is such that the power to pardon is exercised in the spirit of this interpretation. According to this practice, the Minister of Justice takes an active part in the pardon process; the standard perception, as it has been expressed in reality and as it is presented in the state’s response, is that a decision to pardon or to lighten a sentence can be carried out only with the joint consent of both the President of the State and the Minister of Justice. Proof can be found in the fact that prior to the respondent’s case, there had been no incidents of irreconcilable differences of opinion between the President of the State and the Minister of Justice and they always found a way to exercise the power to pardon in a manner acceptable to both of them. This, of course, does not mean that they were always initially in agreement on the matter. However, it does show that the President of the State and the Minister of Justice felt an obligation to engage in a dialogue and eventually come to an agreement. It may be assumed that this consent meant that the Minister has sometimes retreated from his original position and that sometimes it is the President of the State who has accepted the Minister of Justice’s recommendation.

Indeed, the decision-making processes for pardon applications in Israel are mostly based on a set of customs that developed over the years. This is the case regarding the relationship between the President of the State and the Minister of Justice as well as with regard to the work of the Pardons Department at the Ministry of Justice, whose functions are not anchored in law but in custom. As is known, although applications for pardon are submitted to the President’s residence, they are transferred to the Pardons Department at the Ministry of Justice (see Attorney General’s Guideline no. 4.400 (1 July 1974, 6 March 2003, 8 May 2003), entitled “Procedure for Handling Pardon Applications”). Pardon applications submitted by those tried by a military tribunal or a military court are transferred to the office of the Minister of Defense for his opinion. The Pardons Department at the Ministry of Justice is responsible for preparing all the preliminary clarification stages, after which its recommendation is transmitted to the Minister of Justice. The Minister of Justice examines the Department’s recommendation and formulates his recommendation to the President of the State. If the Minister of Justice’s recommendation is to grant the petition, a draft letter of pardon or a draft of a document approving a lessened sentence is attached to the recommendation. If, after the President reviews the recommendation, he chooses to reject it, the pardon is not executed. If the President chooses to grant the pardon application, he signs the letter of pardon and transmits it to the Minister of Justice who will affix his countersignature.

This set of procedures, part of which, as stated, is anchored in s. 12 of the Basic Law and part of which is the result of the development of the work procedures that are anchored in the Attorney General’s Guidelines, raises a question that does not necessarily need to be decided in the context of this discussion, viz., whether or not a “constitutional convention” has been created over the years, whereby the Minister of Justice has discretion with regard to attaching a countersignature, and a pardon decision or a decision to lighten a sentence is reached only with the consent of both officials.

Constitutional convention

32.  A constitutional convention, a concept which has not been discussed extensively in our law, is “a rule with a normative basis, which establishes a standard manner of behavior for state authorities and government officials” (Shimon Sheetrit, “Limitations of a Transition Government”, in Yitzhak Zamir Volume on Law, Administration and Society (Y. Dotan and A. Bendor, eds., 2005), 737, at p. 745). Constitutional conventions are mentioned mostly in the context of questions of government authority and the exercise thereof; they can regulate the division of powers among the various government authorities and outline the manner in which a particular power will be exercised. In unusual circumstances they can even determine that a power that is established in a law or in the constitution does not need to be exercised at all. Constitutional conventions can sometimes fill a gap in the constitution or adjust the written statutory or constitutional provisions to changing times. (See the definition of constitutional conventions provided by Peter Hogg, Constitutional Law of Canada (5^th ed., 2007), at p. 21, according to which constitutional conventions “prescribe the way in which legal powers shall be exercised. Some conventions have the effect of transferring effective power from the legal holder to another official or institution. Other conventions limit an apparently broad legal power, or even prescribe that a legal power shall not be exercised at all.”) Constitutional conventions, as Sir W. Ivor Jennings, described them –

‘ . . . provide the flesh which clothes the dry bones of the law; they make the legal constitution work; they keep it in touch with the growth of ideas. A constitution does not work itself; it has to be worked by men. It is an instrument of national co-operation, and the spirit of the co-operation is as necessary as the instrument. The constitutional conventions are the rules elaborated for effecting that co-operation’ (W.I. Jennings, The Law and the Constitution (1943), at pp. 80-81).

In many states, including England and Canada, constitutional conventions are an integral part of the governmental system and effectively regulate the manner in which key governmental powers are exercised (see, for example, A.V. Dicey, Introduction to the Study of the Law of the Constitution (1945), at pp. 417-473; P. Hogg, Constitutional Law of Canada, supra, at pp. 21-30). Incidentally, it is interesting to note that in England – the source of the Israeli pardoning power – the power to pardon is given to the monarch, but a constitutional convention establishes that the king or queen will exercise his or her power only in accordance with the recommendation of the cabinet minister responsible for the subject. Therefore, if the minister recommends the denial of an application for pardon, the king or the queen will not act contrary to the recommendation, even though, theoretically, the power to pardon belongs to the monarchs (see, for example, the concluding report of the British Ministry of Justice on prerogative powers, including the pardoning power: The Governance of Britain, Review of the Executive Royal Prerogative Powers: Final Report, at p. 15: “The power is exercised by the Sovereign on ministerial advice”, available at: http://www.justice.gov.uk/publications/docs/royal-prerogative.pdf,).

The question of when, in our system, a custom is transformed into a constitutional convention has not been discussed at length in the case law of this Court and the issue has not yet been decided. In similar legal systems, the standard is to invoke three tests that help to determine whether a custom has been transformed into a binding constitutional convention. First, one must examine whether the practice has in some manner taken root as a custom; next, it must be determined whether there is an “awareness of obligation”, i.e., whether the officials and authorities who have acted in accordance with the constitutional convention in the past felt that they were obligated to act do so; and finally, the court must determine whether there is a logical rationale at the basis of the practice that has taken shape over the years and which has become a constitutional convention (see the definition of the tests and the application in the Canadian Federal Supreme Court’s opinion, Re Resolution to Amend the Constitution [10], at p. 888; see also P. Hogg, Constitutional Law of Canada, supra, at pp. 23-25).

33.  Going beyond what is required, as stated, I believe that generally, the approach presented above also characterizes the attitude towards the development of a “constitutional convention” in our system whereby the constitutional spirit takes shape from the manner in which it is implemented as a practical matter. Furthermore, various stages can be discerned in the development of the implementation of constitutional principles. First, there is a practice, then a “custom” according to which the authorities act, and then finally the custom becomes a “constitutional convention”. Once a custom has become a “constitutional convention”, the authorities, as well as officials, understand that there is an obligation to act in accordance with it and the courts will, as a rule, honor the actions of the authorities that are anchored in the constitutional convention (see P. Hogg, Constitutional Law of Canada, supra, at p. 25-26).

Under the tests described above, I tend towards the view that from the manner in which the power to pardon has been exercised in Israel, we can conclude that a “constitutional convention” has crystallized. According to this convention, the Minister of Justice has discretion in terms of providing the countersignature and his actions regarding this matter are carried out in cooperation with the President of the State. From a historical perspective – examined in the context of the first test, that of past precedents – we see that as stated and as far as is known, over the years, there have not been any implacable disputes between the President and the Minister of Justice of the type that have led to the latter’s refusal to countersign. Two key sources indicate that there has been a sense of obligation to act in a certain manner, which is what is examined in the context of the second test. First, this Court’s case law has consistently clarified that the Minister of Justice has discretion with respect to the decision to countersign pardon documents. Second, the Attorney General’s Guidelines dealing with this matter unequivocally established that the countersignature is a matter regarding which the Minister of Justice enjoys discretion and that he or she may, in exceptional cases, refuse to affix his signature. The Attorney General’s Guidelines are extremely important in our context, since, as is known, Attorney General’s Guidelines are binding on the government and the interpretation established in them is an official reflection of the existing law as long as a court has not held otherwise (see: Yitzchak Zamir, Administrative Power (1996), at p. 776; see also “Kach” Party v. Chairman of the Knesset [6], per Justice Barak, at p. 152: “Authority to interpret the law for the executive branch lies with the Attorney General, and his interpretation binds it internally”). Guideline 4.4002 provides that the power to pardon is the President’s, but the need for a countersignature has “led to the development of a custom according to which the Minister conducts the investigation regarding each application for pardon and submits to the President of the State the material regarding the matter, along with his recommendation, either affirmative or negative.” The Guideline also provides that if the President of the State does not accept the Minister’s recommendation to reject the application for pardon, the President and the Minister of Justice must attempt to persuade each other. At the same time, according to the Attorney General, the Minister of Justice can refuse to countersign in an exceptional and extreme case “in which the Minister feels that as a matter of his conscience, he cannot take part in the act of pardoning and he cannot defend it on principle, from a public or parliamentary perspective.” (See also a similar interpretation proffered by Attorney General Meni Mazuz in a letter dated 11 May 2006, attached to the state’s pleadings and marked as A/4.)

The third test for the creation of a constitutional convention examines the rationale underlying the constitutional convention (in the event that one has formed). We discussed this rationale above and found that the countersignature expresses parliamentary responsibility for the exercise of the pardoning power and the ability to subject the pardon decision to judicial review. This responsibility, as stated, results from the main principles of the Israeli system of government, which require a system of checks and balances with respect to the exercise of governmental powers.

34.  The application of the above three tests to the pardoning power, as well as the manner in which the power has been exercised during all the years of the existence of the State of Israel indicate that a developed custom relating to the work of the Pardons Department and to the relationship between the President and the Minister of Justice has reached the level of the creation of a “constitutional convention”. However, as stated, it is not necessary at this time to decide that question. In my view, the existence of a custom – whether or not it has reached the level of a constitutional convention – only strengthens the conclusion that the Minister of Justice has discretion regarding the matter of the countersignature. This conclusion is supported by other important arguments that justify the existence of a review mechanism with respect to the exercise of the pardoning power.

35.  It should also be mentioned that the legislature saw fit to establish additional mechanisms for defining the President’s discretion with respect to pardon decisions. Thus, in 2001, in s. 29 of the Parole Law, the legislature granted discretionary power to the Special Parole Committee that deals with applications submitted by those serving life sentences, to have limitations placed on the duration of their sentences. Section 29 of the Law provides that the Special Parole Committee may recommend that the President lighten the sentence of the prisoner by commuting his sentence into a fixed prison term – after at least seven years have passed from the time the prisoner began serving his sentence, and provided that the period recommended by the Committee is not less than 30 years. The section further specifies the considerations that the Committee may weigh in making its recommendation and provides that in the case of a prisoner serving a life sentence, the Committee may, at any time, at the request of the President of the State or of the Minister of Justice, recommend that the power to pardon be exercised.

The importance of the above-mentioned s. 29 for the interpretation of the power to pardon emerges in light of the situation that existed before its enactment. Section 29 of the Law was enacted because of the refusal of then-President Ezer Weizmann to limit the sentences of those serving life sentences. Although no one disputes that the power to pardon also includes the power to refuse to pardon – and in this case, to refrain from limiting a sentence – the legislature decided to promote greater uniformity in the operation of the sentence-limitation mechanism, which is a part of the pardoning power, by establishing the Special Parole Committee. Moreover, the Law also provides that the Special Parole Committee may not recommend the reducing a sentence to a period of less than thirty years. To a certain degree, the attempt to bring about greater uniformity in the limitation of sentences resulted from the fact that the limitation of a sentence and the use of an application for a pardon have become almost routine; both have become elements that are part of the manner in which the power of pardon is exercised in our legal system.

The significance of s. 29 of the Law is, therefore, twofold. First, the Law establishes an additional review mechanism, beyond the President’s power to pardon. When the President of the State decided, in sweeping fashion, not to use his power – as happened during President Ezer Weizmann’s term of office – the legislature created a qualification, albeit one that was limited in scope. Second, before s. 29 was enacted, the President of the State could choose whether to limit a sentence, and if he chose to limit a sentence, he could choose the length of time to which it would be limited. In the present statutory situation, it appears that in view of the recommendation of the Parole Committee, acting by virtue of the Law, the sentence cannot be limited to a period of less than 30 years. As a side point, we do not see the need to adopt a position regarding the significance of a President’s decision to limit the sentence of a prisoner serving a life sentence other than in accordance with the recommendation of the Special Parole Committee or the provisions of the Parole Law, as no arguments regarding this matter have been raised before us (see, in this context, the position adopted by Justice Levy in HCJ 9631/07 Katz v. President of the State [7]).

Concern for the politicization of pardons

36.  One of the key factors underlying my colleague Justice Levy’s conclusion that the Minister of Justice has no discretion regarding the countersignature is the concern that political considerations will become a factor in decisions regarding pardons. According to Justice Levy’s position, granting discretion to the Minister of Justice is likely to “[detract] from the purpose in light of which this legal institution was developed” and could adversely affect the institution of the presidency to the point that it would “uproot its unique character” (paras. 14 and 16 of Justice Levy’s opinion). Justice Levy also held that in light of the fact that pardon decisions will have the effect of changing determinations that have been made by the judicial branch, there is a concern that political pressure will be brought to bear upon the President of the State, which could lead to contempt for the legal process and to a miscarriage of justice.

In my view, there is no real danger that Justice Levy’s harsh prediction would be realized. The apparent danger of intervention in decisions in the judiciary branch is relevant only when a court’s final decision is modified. Such a change will take place only when the President approves an application for a pardon – that is, when there is agreement between the President of the State and the Minister of Justice regarding the pardon. This is so because even if the Minister of Justice recommends that an application for a pardon should be granted, if the President chooses to deny the application, the Minister of Justice cannot force the President to accept his recommendation. Once the Minister’s recommendation is transmitted from the Ministry of Justice to the President’s residence, the President can, of course, accept the recommendation or reject it. The first to sign the letter of pardon or the document approving the lesser sentence is the President. When the President refuses to sign, the pardon does not ensue. The operative significance is that the decision of the judiciary remains in force. If the President decides to grant the application for a pardon, the concern with respect to political intervention has no real significance since it is the President who has chosen to make the decision to pardon.

Of course, we cannot ignore the fact that the Minister of Justice is a political figure. The very fact of the Minister of Justice’s involvement in the pardon process signifies that political considerations are likely to become part of that process. It is precisely because of this that the importance of the countersignature as a means of parliamentary and judicial review over the Minister’s considerations – if those considerations are irrelevant or improper – becomes clear. In this review process, the actions of the Minister of Justice relating to the pardon power can be examined with respect to the question of whether they deviate from the realm of what is legal or whether they involve the application of improper pressure on the President of the State. The review can be carried out by the government and the Knesset. It can also take the form of direct review by the court. In the latter context, the court can apply the rules of administrative and constitutional law to the Minister’s actions. These rules require, inter alia, that the Minister make a decision based on an adequate factual infrastructure; weigh only relevant considerations; consider the recommendations of the various entities that examine the applications for pardons; and give proper weight to each piece of information submitted to him, including details relating to the applicant’s record of convictions and to his behavior during his incarceration. These rules and the professional mechanism in the context of which the Minister of Justice acts have the capacity to significantly reduce the risk that the Minister will introduce political considerations; his exercise of discretion will be subject to review.

An aside: a comparative law view

37.  We began our discussion of the case before us with the basic principle concerning the Israeli pardoning power, recognized in our case law over the years and which my colleague, Justice Levy, also accepts – the fact that the power is “an original Israeli creation”. This principle, which runs through the Israeli case law, not only affects the interpretation of the pardoning power; it also affects our ability to learn from pardon arrangements followed in other states.

My colleague Justice Levy provided a broad and impressive description of the pardon arrangements followed in a long list of states throughout the world. The survey that appears in my colleague’s opinion indicates that different states use a variety of mechanisms regarding the exercise of the pardon power. Various arrangements also exist with respect to the involvement of parties within the executive branch in the pardon process, including with respect to the possible need for a countersignature.

The question of whether we can look to the arrangements followed in other countries in construing the pardoning power was dealt with at length in the judgments of this Court that examined that power. As stated, the early judgments dealing with the issue rejected the view that we are required to interpret the power to pardon in the spirit of the power of the English monarch. This Court highlighted the importance of interpreting the pardoning power against the background of the basic principles of Israeli democracy. The basis of this approach is the perception that the power to pardon, like other sovereign powers, is based on unique characteristics of the Israeli democratic regime. It has previously been held, therefore, that information obtained from the study of comparative law can be used only with extreme caution, although such information can teach us about the various possibilities with regard to the exercise and interpretation of the pardoning power. I therefore share the view that only qualified importance may be attributed to the pardon arrangements established in other countries, in which the structure of governmental powers is significantly different from the structure of powers in the State of Israel. Thus, “however similar the scope of the powers held by similar officials in other countries,” stated Justice A. Barak in Barzilai v. Government of Israel [2], “we must in the final analysis construe the President’s own power against the domestic constitutional background, and in the end we can gain but limited interpretative guidance from the situation in other countries” (ibid. [2], at p. 596).

38.  The pardoning power, as stated, takes different and various forms in different legal systems. My colleague Justice Levy elaborated on this point. There are states in which the pardoning power is granted to the head of state (the king, president or governor-general), while in other states the pardoning power is conferred only upon the parliament or the judicial authority. There are states in which the pardon process involves an advisory committee, while in other states exclusive power is granted to a single government body. In some states pardons can be granted only after a conviction, while other states allow pardons before convictions as well. In some states only the penalty can be affected, while in other states the pardon strikes out the conviction itself. In certain states a pardon is given only in extreme, unique and exceptional circumstances in which there is a concern that a fair trial was not conducted, while in other states pardons are used relatively frequently. In some states a pardon decision can be attacked either directly or indirectly in court, while in other states there is no right to appeal to the court regarding such decisions. Certain states have established a requirement that the government or a government minister must countersign, and some states have given up this requirement; among those states in which there is a countersignature requirement, different and various explanations are given for its significance and scope (see, among many others: L. Sebba, “The Pardoning Power – A World Survey”, 68(1) J. Crim. L. & Criminology 83 (1977); see also the examples cited in the opinion of President M. Shamgar in Barzilai v. Government of Israel [2], at pp. 549-551). Indeed, there is no single universal pardoning model. Because the power to pardon is rooted in the fundamental principles of the system of government, “virtually every legal system has fashioned its own peculiar perspective on the subject, in harmony with its other governmental institutions” (ibid. [2], at p. 550, per Justice Shamgar). For this reason, even if the arrangements in other countries are examined, they should be treated with extreme caution. Thus, for example, it is doubtful that we can learn from a judgment of the Italian Constitutional Court, regarding which Justice Levy notes that “this is the normative environment in which the pardon exists in our legal system as well” (para. 13 of the judgment). Although the Italian judgment deals with a question that is similar to the one discussed in this further hearing, the differences between the status of the President of the State there and here, the different functions given to the President of Italy by the Italian constitution that are not given to the President of the State of Israel, and the distinctions involved in the exercise of the power to pardon as such are indicated by the judgment of the Italian court, including the possibility of the Italian President applying to the constitutional court, make it difficult to draw an analogy between the rules established there and our law.

Conclusion

39.  For the reasons above, I believe that the position adopted in the judgment in the original petition, whereby the countersignature is intended only to confirm that all the processes that are preliminary to the pardon decision made by the President of the State have been carried out in full and nothing more, greatly restricts the Minister of Justice’s discretion in a manner that is inconsistent with the basic principles of the Israeli system of government, the statutory language, and the case law interpreting the power to pardon. In my view, we must not abandon the principle that there is no governmental power that is not subject to review, including those powers given to the President of the State. This principle requires that the Minister of Justice be given discretion with respect to affixing a countersignature to a President’s decision to pardon or to lighten a sentence, in a manner which allows for parliamentary and judicial review of the exercise of the pardoning power. This review, as noted above, should be exercised moderately and after taking into consideration the nature of the pardoning power and the exalted status of the President of the State who holds it. Therefore, if my view is accepted, I would uphold the position of the Minister of Justice with regard to the essence of the appeal.

Regarding the specific matter before us, as time has passed and personnel changes have taken place at the President’s residence and at the Ministry of Justice since the respondent applied for a limitation of his sentence, I propose to my colleagues that we rule that his matter be returned to the Special Parole Committee and to the current President of the State and Minister of Justice, who will exercise their powers taking into consideration this Court’s holdings in this further hearing.

 

Justice M. Naor

I share the view of the President that an examination of the normative framework of the pardoning power in Israel leads to the conclusion that the basic principles of the Israeli system of government require processes for review of the exercise of the President’s pardoning power – processes which are expressed in the countersignature of the Minister of Justice. These review processes do not make the Minister of Justice an authority whose power is equal to that of the President of the State. Rather, his status is that of an ancillary authority to the President, an authority which has the power, in exceptional, special and unusual cases, to prevent the implementation of a pardon. The Minister of Justice himself is subject to public criticism and review by this Court. Therefore, as President Beinisch has proposed, the position of the Minister of Justice should be accepted.

I also concur in President Beinisch’s recommendation that the respondent’s case be returned to the Special Parole Committee and to the current President of the State and the Minister of Justice.

 

Deputy President E. Rivlin

 I concur with President Beinisch’s decision. For all the reasons provided by the President, I agree that the Justice Minister may independently decide whether to add his or her signature to that of the State President on a clemency order. As noted, this approach is consistent with the previous decisions of this Court. See, Reuven v. Chairman and Members of the Law Committee [3], at 755 - 56 (Agranat, J.); Attorney General v. Matana [1], at 472, (Berinson, J.); Id. at 454, (Agranat, Acting President); Barzilai v. Government of Israel [2], at 581, (Ben-Porat, Deputy President); and Ronen v. Minister of Education and Culture [5], at 412, (Cheshin, J.). This view is also consistent with the legal guidelines provided by the Attorney General and reflects the position of most legal scholars who have addressed the issue. (See the sources cited in paragraph 18 of my colleague’s opinion.)

The basic principles of a democratic regime, which are based on mechanisms of checks and balances, do not allow for any absolute power to remain in the hands of the State President with no oversight or review. Nevertheless, and as my colleague emphasized, the authority given to the Minister of Justice to refuse to affix his signature to a clemency order should be limited only to the most exceptional and unusual cases. The fact that this is the first time a Minister of Justice has refused to sign a clemency order demonstrates that this case is an exceptional case in which the Minister of Justice may utilize her discretion.

 

Justice E. Arbel

There is no dispute as to the exalted status of the President of the State. Nor is there any disagreement regarding the fact that he has a unique and special power to pardon offenders and to lighten their sentences. This power is accompanied by a requirement for the countersignature of the Prime Minister or that of another minister – the Minister of Justice. Regarding the nature of the countersignature, and the scope of the discretion given to the Minister of Justice, I am in full agreement with my colleague, President Beinisch. I concur in her findings and in the reasoning elucidated in her opinion. This issue is a very important one and raises serious constitutional questions.

The grant of discretion to the Minister of Justice, which allows him/her to refrain from providing a countersignature, is necessary and unavoidable. At the same time, he or she may exercise this discretion only cautiously, in exceptional circumstances. My colleague, President Beinisch, believes that the Minister of Justice’s involvement should be limited to cases in which he or she is “persuaded that the President’s decision is tainted by an extreme degree of unreasonableness or is motivated by irrelevant considerations.” I agree with this position, although it is clear that even in such a case, a significant degree of discipline and restraint will be required.

In light of the rarity of the cases in which the Minister of Justice will intervene in the decision of the President of the State to grant a pardon – which can be inferred from past experience and the principles proposed in the President’s opinion – I do not share the concern that the grant of discretion to the Minister of Justice, or of a veto right, as my colleague Justice Levy termed it, will harm the status of the institution of the presidency or take away its unique nature. I do not believe that it will lead to the application of political pressure. This is the minimum review and oversight required by the basic principles of Israel’s democratic system of government in order to maintain the basic principle of “checks and balances” among the various authorities.

 

Justice E. Hayut

I concur in the judgment of my colleague, the President, and with the reasoning and reasons set out in it. Indeed, the interpretation she followed with respect to the significance of the pardoning power granted to the President of the State and the nature of the countersignature of the Minister of Justice on pardon and sentence-lightening documents, as a signature involving a certain degree of discretion is, in my view, consistent with the basic principles of a democratic regime, as reflected in Israel’s legal system.

 

Justice S. Joubran

I concur in the instructive and comprehensive opinion of my colleague, President Beinisch, according to which the basic principles of Israel’s system of government, primarily the principle of the separation of powers among the branches, require that there be processes for review of the exercise of the pardoning power of the President of the State, as expressed in the Minister of Justice’s countersignature. This conclusion is based on the relevant legislative history, on the Attorney General’s Guidelines and on the decisions of this Court, as described at length in my colleague’s opinion. I also concur with President Beinisch’s position that the Minister of Justice should be authorized to refuse to affix a countersignature to the President’s decision only in exceptional and unusual circumstances, in which the Minister has difficulty supporting the pardon and has been unable to change the President’s mind.

President Beinisch discussed the issues that arose in the further hearing before us, including –I would stress – the concern about involvement of irrelevant political considerations in the pardon decisions, in detail. First, there is a presumption that the Minister of Justice will exercise his discretion in this context in an apolitical manner which is free of irrelevant considerations. Of course, if a suspicion should arise that the Minister of Justice has not acted in this manner, the doors of this Court are open and it has the power to review the Minister of Justice’s decision in this matter, as it can review any other administrative decision. Secondly, I sincerely hope that when providing a countersignature for pardon matters, the Minister of Justice will recall that although he is a political personality, with regard to a pardon – which has an apolitical character – he must see himself first and foremost as executing an official matter of state and will act accordingly.

I also concur in President Beinisch’s recommendation that the respondent’s case be sent to the relevant parties for re-examination.

 

Justice E. Rubinstein

1.    I have not changed my view, as it was stated in the judgment forming the subject of this proceeding (hereinafter: “the original judgment”), and which is now the majority view, as stated by the President. The following principles formed the core of my opinion:

‘The idealistic perception of a decision which has nothing behind it and which looks forward only, as in the approaches mentioned by my colleague and as in the approach of my colleague himself, is, I believe, suitable only for those who dwell in the heavens and not for human beings. It is true that the President’s decisions cannot be appealed, but it is for this reason specifically that there is a need for review, for those occasions on which it is required, and for preventing the misuse – heaven forbid – of the power. The Minister’s countersignature must serve as a sort of “gatekeeper” for the President of the State. Let me be clear: the countersignature does not negate discretion – it negates only discretion that deviates from the law in that it is defective.’ (Compare also the remarks of Justice Berinson in Matana v. Attorney General [4]; A. Klagsbald, “A Note on the Scope of the Immunity of the President of the President of the State”, 7 Tel-Aviv University Law Review (Iyyunei Mishpat) 238 (1979), at pp. 243-244.)

One may ask whether the Minister, who is a political personality, is fit to serve as the “review unit” vis-à-vis the President? . . . The answer is that although the matter is not problem-free, there are nevertheless quite a few mechanisms surrounding the Minister, as noted by my colleague, and when these mechanisms are in place, the chance that the Minister will act improperly is greatly reduced. Moreover, the Minister is subject to the direct review of this Court sitting as the High Court of Justice, something which is certainly undisputed. On the other hand, we cannot ignore the complexity (or the strangeness, in the words of Klagsbard, supra, at p. 240), of the indirect attack mechanism, should the Minister of Justice be prevented, from the outset, from exercising discretion in the course of the act of pardoning, while the exercise of discretion is required of administrative bodies, who in like matters generally do not have discretion (paras. 10, 12).

I also discussed (in paras. 14-17) the nature of the pardon from the Jewish perspective, as one of God’s attributes, which according to at least one approach, “is not detached from the strict legal perspective . . . as in the words of the prophet, ‘I will espouse you with righteousness and justice and with goodness and mercy.’ (Hosea 2:21) (para. 17).” I will not repeat all my comments, which can be found where they were originally written.

2.    For this reason, I concur in the opinion of my colleague, President Beinisch, and with the remedy she proposed (para. 39). She refers to the differences between the English monarch and the President of the State of Israel with respect to their being subject to review (paras. 20-21). I wish to stress that in the Jewish tradition, the king’s actions are also subject to review. The Mishnah indeed states that the “king does not judge and he is not judged” (Babylonian Talmud, Sanhedrin 2b), but alongside this Mishnah, the Babylonian Amora, Rav Yosef also cites a tradition:

‘They spoke only of the kings of Israel, but kings from the House of David – they judge and are judged . . . why not the kings of Israel? Because of an event that occurred . . . . (Babylonian Talmud, Sanhedrin 19a).

And in modern Hebrew: The Mishnah spoke only of the kings of Israel [the kings of the biblical Israelite kingdom], but the kings of the House of David [of the united kingdom and of the biblical kingdom of Judea] – they judge and are judged . . . . And what was the reason that they said that the kings of Israel do not [judge and are not judged]? Because of an event that occurred.’  

This means that as a rule, the king, too, “judges and is judged,” but with respect to the kings of Israel – who, in the words of Maimonides in his commentary on the Mishnah there, “ruled evilly and did not attribute importance to humility and modesty and did not tolerate the truth” – it was established that they cannot be judged “because of an event that occurred.” And what was the event? An event involving King Yannai, one of the kings of the house of the Hasmoneans, who instilled fear in his judges, until “[the angel – E.R.] Gabriel came and struck them to the ground and they died” (Babylonian Talmud, ibid.). Although Rav Yosef’s interpretation is inconsistent with the sweeping language in the Mishnah or other binding sources (see, for an example, Tosafot’s commentary there, s.v. “but the kings of the house of David”), the Jewish sages viewed the situation of a government entity that is not subject to review as even more problematic. (I do not deal here with the question of which specific legal matters are referred to in this Mishnah; the presentation of the principle is sufficient for our purposes.)

3.    As a marginal point, I add that the question confronting me as I wrote my original opinion and which confronts me again now, is whether it is possible or desirable to distinguish between different countersignatures. In particular, I looked at s. 11(a) of the Basic Law: President of the State. Do we say that the same discretion exercised by the Minister of Justice when countersigning a presidential pardon can be (and perhaps should be) exercised by the President of the State when he signs laws passed by the Knesset or “treaties with foreign countries that have been ratified by the Knesset”? Further, is it correct to make a distinction between the Minister of Justice’s discretion regarding a countersignature on a letter of pardon and the discretion that ministers must exercise when they countersign other documents coming from the President?

4. This question need not be resolved for the purpose of deciding the matter that is before us and is not dealt with expressly in the original judgment (nor in a comprehensive and interesting article published following that judgment, Y. Nehushtan, “The Status of the Countersignature in the Framework of the Pardon Process: After HCJ 10021/06 Zohar v. Minister of Justice”, 2 Mishpatim Al Atar 25 (2010), which supports the position now taken by the majority). A possible answer may be found in the distinction made by President Beinisch “between the functions given to the President and the power granted to him to pardon offenders” (para. 15; emphasis in the original), and possibly in her remarks regarding the formulation of a “constitutional convention”. There are also other reasons for distinguishing between the “countersignature” in s. 12 of the Basic Law: President of the State and other types of signatures (and between a letter of pardon and other “presidential” documents). These possible lines of thought contain solutions to some of the questions that remain before me in light of the position that I proposed in the original judgment, which has now been accepted as the majority opinion.

5.    In conclusion, I am very much in favor of the doctrine of the constitutional convention described by President Beinisch. In my view, over and above the criteria that she mentioned, recognition of the institution of a constitutional convention has educational and moral importance. It radiates stability and continuity in the normative system and makes it possible – even in a state in which the work of establishing a constitution has not been completed and whose constitutional institutions are not fully rooted in a constitution which is written like the rest of its law – to instill a sense of a constitutional tradition that passes from generation to generation. In my view, this is a matter of invaluable importance.

 

Justice E.E. Levy

1.    I have read the comprehensive opinion of my colleague the President as well as the opinions of my other honorable colleagues. I also read Dr. Yossi Nehushtan’s above-mentioned incisive article, which was written following our original judgment. Although I still take the view that this is a new path and not just a step along the route of an existing constitutional convention, I am prepared to go further along this path with my colleagues than I did in my initial opinion.

I too, “since the handing down of the judgment – and against the background of the further hearing itself – … have not stopped questioning myself as to whether my approach was properly based in the law,” (CrimFH 7048/97 Anonymous Parties v. Minister of Defense [8] at p. 744, per President Barak), and therefore, after giving much thought to the matter, I accept that there is an advantage in implementing a mechanism that ensures the legitimacy of the President’s determinations in pardon cases. This is because of the sensitivity of the issue and because of the special status of the President of the State, who, it has been held, is not subject to direct judicial review. I would, however, emphasize that this mechanism should be available only with respect to those decisions which, were they tested according to administrative law, would be deemed utterly void – i.e., decisions made on the basis of irrelevant considerations, or which have been made other than in good faith or which are ultra vires. I do not believe that the Minister of Justice should be given any role to play in the assessment of the reasonableness of the President’s decisions. In my view, a defect in terms of reasonableness should not by itself serve as a ground for a refusal to countersign. Nevertheless, such a defect is able to indicate the presence of one of the grounds that I have mentioned above.

2.    My original view was, and still is, concerned with the intervention of the executive branch in the act of the pardon, lest the executive become a partner in the exercise of presidential discretion. Such intervention would not only detract from a presidential prerogative that has an established status in our legal system and threaten to involve the executive branch in the decisions of the courts, in violation of the principle of balancing between the branches of government, but as a matter of substance, is likely to bring about the involvement of irrelevant considerations in the act of the pardon. In truth, if there was initially a concern that the President of the State would become dependent – in practice, if not in theory – on the preliminary recommendations of the Ministry of Justice, this concern becomes much greater if it is necessary to obtain the Minister’s later consent to the presidential decree. Not only is this liable to give the Ministry of Justice and the Minister who heads it, at least, an equal status regarding pardon matters; it is also evident that it could create a bargaining system, “along the lines of ‘support my candidacy, and I will support your candidate’” (HCJ 1637/06 Armon v. Minister of Finance [9], at para. 11, per Justice Levy). The serious concern is that such a “negotiation” could be hidden since it will have aspects which by their nature will not reach the awareness of external parties – either those applying for pardons, or the public, or the courts in which the judicial review takes place. Such negotiations, which naturally accompany a joint exercise of discretion, do not and cannot limit the Minister of Justice’s impact to “exceptional and extreme circumstances” – in the language used above.

My original opinion entered into uncharted territory, in which a number of doctrines with completely different perspectives on the nature of the countersignature presented themselves. The main part of what I wrote then was directed at the rejection of the doctrine concerning the “parallel power” (Nehushtan, “Status of the Countersignature”, supra, at p. 33). The scholars whom I cited were vigorously opposed to this idea and none of my colleagues dispute my position rejecting this view (and any view similar to it) entirely. Other legal systems which, in my view, have more in common than not with the Israeli system in this regard, have also reached this conclusion. This is so because the negative impact that interests connected to governmental survival and party politics will have on matters in which no such considerations should be allowed is not tied specifically to the institution of British royalty or to the president of the Italian republic in particular. These are fundamental questions that arise in any democratic legal system, in which one of the government institutions is given the power to change a final determination made by the courts.

It is therefore appropriate to limit the power of the Minister of Justice to an area with well-defined boundaries, within which he will not be given any role in shaping the content of the determination that has been made, or in evaluating its substance. For this reason, I am completely unable to accept the position expressed in Ronen v. Minister of Education and Culture [5], at p. 412, whereby “the act of pardon or of lightening of a sentence is a joining of one view to another view: the joining of the Minister’s view to that of the President of the State.” In my view, the Minister’s signature cannot serve as anything other than a stamp of confirmation with regard to the fact that the decision that was made complies with the basic requirements of a governmental action, meaning that it was made by the authorized party, that all the required information was placed before the President of the State – as stated in my original judgment – and weighed on its own merit, and that the decision is not the result of any improper motivation or arbitrariness. That, and no more.

3.    Since I have found support for the position that most of the cases in which the question under discussion arises are not of the type dealt with in the above-mentioned judgments – Attorney General v. Matana [1] and Barzilai v. Government of Israel [2] (per President Beinisch, at para.30; Nehushtan, “Status of the Countersignature”, supra, at p. 43) - it appears that the outline of the review which is being proposed here (and in my view its function is to ensure judicial review more than parliamentary or public review, see Nehushtan, supra, at p. 31) is a good balance between the independence of the President of the State’s discretion and the concern of which my colleague, President Beinisch, wrote in para. 23 of her opinion, regarding the existence of a power that is not subject to any review.

4.    Thus, I am prepared to accept the position that the requirement of a countersignature on pardon matters provides a means for overseeing decisions regarding which there is a concern that their origin is improper, which cannot be challenged in any other way. In my view, the issue of reasonableness should be left in the hands of the President of the State.

 

Justice Y. Danziger

1.    After reviewing President D. Beinisch’s comprehensive and learned opinion, I have reached the conclusion that I cannot concur in her position. My opinion remains as it was. Once the President of the State has signed a letter of pardon, the Minister of Justice is also required to attach his countersignature, and he may not exercise any discretion, nor can he “veto” the President’s decision – because the President’s power to pardon offenders is a unique power of the pardoning authority, and it is intended to grant to the President of the State, in this area, full freedom to act as he wishes and in accordance with his best understanding.

2.    As will be recalled, in the original judgment, I concurred in the opinion of my colleague, Justice E. Levy. Today as well, my position is supported by Justice Levy’s comprehensive and in-depth reasoning in that judgment, which I see no need to describe again here. I will mention that in my opinion in the original petition, I reasoned, like Justice Levy, that the President’s power to pardon does not fall within the definition of an executive act: it is a presidential prerogative which grants the President of the State full freedom to decide the petitions for pardon as he sees fit. I further emphasized in my opinion in the original judgment that the countersignature is not intended to give to the government’s representative the status of a partner in a decision regarding pardon matters, and certainly not the power to decide them. I reasoned then, and I still believe now, that the entire purpose of the countersignature is to ensure that all of the information that is relevant to the President’s decision has been submitted to him for his review, and that no mistakes whatsoever have occurred. Unlike my colleague Justice Rubinstein, I believed and still believe today that once the relevant material has been placed before the President of the State and once he has decided to pardon a particular person, then even if the Minister of Justice does not agree with the President’s decision, he is required to affix his countersignature, because if this is not the case, the representative of the executive branch will be given a sort of “veto” right regarding the President’s decisions in an area in which the President alone has been given discretion to make such decisions.

3.    I wish to add a number of comments regarding President Beinisch’s opinion in the further hearing. Like my colleague Justice Levy, I also believe that President Beinisch’s position does not refer to an “existing constitutional convention”; rather, we are dealing with a “new path” that does not necessarily conform to the constitutional history of the State of Israel with respect to the characteristics of the functions of the President of the State in general, and in particular with respect to his power as the pardoning authority, as Justice Levy stressed extensively in the framework of the judgment in the original petition, while describing at length the nature and sources of the President’s pardoning power.

4.    President Beinisch’s central criticism of the position presented by the majority judges in the original judgment – a position that I still hold – was that it is unreasonable that the President of the State would not be subject to any oversight or review, in contrast to the other branches of the constitutional regime in the State of Israel, and in violation of the principle requiring a system of “checks and balances”, which is one of the basic principles of a democratic system.

However, I believe that the majority opinion in the original petition provided a proper response to President Beinisch’s concern. Remarks made in the opinion serve to clarify that the President of the State is not placed above the law and even he is subject to control and oversight, in a manner consistent with the principle that requires a system of checks and balances. Thus, para. 23 of Justice Levy’s original judgment outlines the manner in which judicial review over the President of the State’s pardoning power is exercised. Although this is indirect review, it nevertheless leads, in the end, to the same result as the direct review preferred by President Beinisch in her opinion in the further hearing. As Justice Levy held:

‘ . . . Indeed, once a decision has been made regarding the grant of a pardon – and in any event it is only then that there is a matter which can be upheld – the implementation of the decision requires the actions of various administrative bodies. These are subjected, without difficulty, to review which is based on rules of public law. The (direct) review of their actions is the springboard for the (indirect) review of the President’s decision. As Justice Berinson wrote: “There is no need to disqualify the [President’s] act itself. It is sufficient for us that we refrain from validating it and provide no assistance for its execution”’ (Matana v. Attorney General [4], at p. 979).

Consequently, I cannot understand the claim that the majority opinion in the judgment in the original petition is inconsistent with the principle requiring a system of checks and balances.

5.    In light of the existence of an indirect mechanism for review and supervision of the pardoning power of the President of the State, it is not at all clear to me why a system of direct review is prima facie preferable, when such is inconsistent with the nature and functions of the President in general and with the unique characteristics of the institution of pardon in particular. Moreover, I believe that the practical significance of President Beinisch’s opinion is to give the Minister of Justice a right to “veto” the decision of the President of the State to pardon a particular person, and it is specifically in this way that I believe that harm is done to the principle of checks and balances on which President Beinisch bases her opinion. Since this harm to the principle of checks and balances can be avoided by opting for the indirect review mechanism, I believe that this route should be preferred over direct review, which serves to erode the nature and uniqueness of the pardoning power.

6.    The additional reason for preferring the indirect review mechanism is that a political figure should not be given a “veto” right over the decisions of the pardoning authority – as my colleague, Justice Levy, noted in the judgment in the original petition. The reason for this is that a political figure is likely to weigh irrelevant considerations that are not among those that the President of the State should generally take into consideration in deciding to pardon a particular person – such as sectoral considerations that reflect the “voter’s interest”, or the interest of a particular group that the political figure champions. The institution of the pardon, as my colleague, Justice Levy, explained, does constitute an intervention in a judicial decision, and for this reason, the public interest requires that the decision to pardon a particular person must not be influenced by political considerations. As Justice Levy wrote in the judgment in the original petition, the prohibition against introducing political considerations into the framework of an act of pardon flows from the characteristics of that institution in the Israeli legal system, and the unique outlines of its character, which clearly separate it from the executive branch’s area of jurisdiction.

 7.   President Beinisch writes that there is no real concern regarding the effect of political pressures on the decision of the President of the State to pardon a particular person. President Beinisch further notes, as do my other colleagues in the panel, that the cases in which the Minister of Justice can intervene in the President’s decision are rare and unusual. However, even if no direct political pressures are exerted on the President, and even if such intervention would be possible only in rare and unusual cases – the fact of the possibility of the Minister of Justice’s intervention will always be in the background, and the President will always be aware of it; for this reason, when he comes to pardon a particular person, the President could, heaven forbid, act so as to reach prior agreements and understandings with the Minister of Justice. This is something that needs to be avoided, for the sake of the public interest in the “clean nature” and purity of the institution of the pardon, and in order to prevent any adverse effect on the public’s faith in the institution of the presidency in general, and in the pardoning authority in particular.

8.    In conclusion, I note that I cannot concur in the current position taken by Justice Levy, according to which the Minister of Justice may refuse to affix his countersignature when he believes that the President’s decision was made due to irrelevant considerations. The reason for this is that if indeed the President relied on irrelevant considerations, the way to exercise review and supervision over such cases is through the indirect judicial review mechanism, as I have noted above, and as explained by Justice Levy in his judgment in the original petition. Since the indirect judicial review mechanism is, in my view the preferred review mechanism, in light of the unique nature of the pardoning authority, this is the mechanism that should be used, even when the matter involved is a concern that the President has made a decision based on irrelevant considerations.

9.    Finally, I retain my view as expressed in my opinion in the original judgment, and I do not believe, even after reviewing President Beinisch’s learned opinion, that there is any reason to change it.

 

Decided as per President Beinisch’s opinion, with which Deputy President Rivlin, and Justices Naor, Arbel, Rubinstein, Joubran and Hayut concurred and with which Justice Levy concurred in part, and against the dissenting opinion of Justice Danziger.

 

22 Kislev 5771.

29 November 2010.