Administrative Law

Movement for Quality Government in Israel v. The Knesset

Case/docket number: 
HCJ 5658/23
Date Decided: 
Monday, January 1, 2024
Decision Type: 
Original
Abstract: 

Movement for Quality Government v. Knesset concerns challenges to Amendment No. 3 to Basic Law: The Judiciary (the “reasonableness amendment”). In view of the controversy surrounding the amendment and the fundamental constitutional question it raised in regard to the Supreme Court’s jurisdiction to review Basic Laws, the Court took the unprecedented step of sitting en banc. We translate here Chief Justice Hayut's majority opinion.

 

On January 1, 2024, a majority of the Court (12 of 15 justices) held that the Court held the authority 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 represented an extreme deviation from the Knesset’s constituent authority that left no alternative but to declare the amendment void.

 

An abstract of the various opinions can be found here.

Voting Justices: 
Primary Author
majority opinion
Full text of the opinion: 

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 12th Knesset, IsrSC 42(4) 177 (1988)

[54]      11280/02 Central Elections Committee for the 16th 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 37th 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 25th 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 25th 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 25th 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 25th 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 25th 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 25th 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 25th 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 (6th 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.

 

  1. 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).

 

  1. 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).

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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 25th 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 25th 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 25th 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 25th 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 25th 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 (8th 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 (10th 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 34th Government “The Advisory Council for Appointments to Senior Positions and the Revocation of Government Decisions” (May 27, 2018); Decision 516 of the 9th Government “Conditions for Appointment to Certain Offices” (Aug. 14, 1960); Decision 4892 of the 27th 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 28th 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., 4th 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 37th 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 9th 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 18th 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)

 

Movement for Quality Government v. Knesset

Case/docket number: 
HCJ 5658/23
Date Decided: 
Monday, January 1, 2024
Decision Type: 
Original
Abstract: 

Movement for Quality Government v. Knesset concerned challenges to Amendment No. 3 to Basic Law: The Judiciary (the “reasonableness amendment”). In view of the controversy surrounding the amendment and the fundamental constitutional question it raised in regard to the Supreme Court’s jurisdiction to review Basic Laws, the Court took the unprecedented step of sitting en banc. A translation of the official abstract issued by the Court appears here.

 

On January 1, 2024, a majority of the Court (12 of 15 justices) held that the Court held the authority 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 represented an extreme deviation from the Knesset’s constituent authority that left no alternative but to declare the amendment void.

 

A translation of President Hayut's majority opinion is accessible here.

 

 

Voting Justices: 
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Full text of the opinion: 

 

 

 

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.

 

 

Hashavim H.P.S. Business Information, Ltd. v. The Courts' Administration

Case/docket number: 
HCJ 5870/14
Date Decided: 
Thursday, November 12, 2015
Decision Type: 
Original
Abstract: 

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

 

This case concerned a petition challenging the decision of the Courts Administration (the Respondent) making access to its judgment database contingent upon signing a “guarantee” that comprised, inter alia, a prohibition upon indexing the information in a manner that would allow it to be found through web search engines such as Google and Bing. The Petitioner is a commercial company whose primary activity is the operation of two internet sites (Takdin and Takdin Light) that provide information to the public for a fee, and through which the judgments and decisions of the various courts, which are “drawn” from the Respondent’s judgment database, can be accessed.

 

The High Court of Justice (per Deputy President E. Rubinstein, Justices E. Hayut and U. Vogelman concurring) granted the petition for the following reasons:

 

In terms of authority, it was noted that administrative decisions that violate basic rights are required to meet the conditions of the Limitations Clause, the first of which is authority by virtue of primary legislation. In the present case, it was held that the practical import of the Respondent’s decision results in a violation of freedom of occupation, the principle of open justice, and freedom of expression. As noted, such violations must be authorized by primary legislation, but no such authorization was presented. In this regard, the Court held that the Respondent’s agreement to sign the guarantee is irrelevant to the question of authority. The requirement of authority is not dispositive. The HCJ also noted the difficulty in recognizing the Protection of Privacy Law as a source of authority for the Respondent’s decision.

 

Although unnecessary for deciding the issue, the HCJ went on to examine the decision on two additional levels – the decision process and the underlying discretion.

 

The Petitioner’s arguments were rejected in regard to three aspects of the administrative process: the hearing, the reasons given, and the Respondent’s decision not to disclose the opinion of the Ministry of Justice’s Information and Technology Authority that served as the basis for its policy on indexing judgments.

 

On the other hand, the Court held that the Respondent’s exercise of discretion in making its decision was flawed. In this regard, it was noted that only a substantial deviation from the scope of reasonableness would result in the Court’s intervention in the balance struck in an administrative agency’s decision. In the present case, the required balance was between the right to privacy of litigants and the principle of open justice and the Petitioner’s freedom of occupation. The test for examining the benefit deriving from the Respondent’s concrete decision (prohibiting indexing judgments by entities granted direct access to its judgment database) in regard to the protection of privacy as opposed to the violation of freedom of occupation is that of the appropriate means. Performing that examination in accordance with the three proportionality tests established by the case law led the Court to the conclusion that the Respondent’s decision was unreasonable under each of the tests.

 

The Court was of the opinion that the means adopted by the Respondent did not appear to achieve the desired result – preventing the violation of the privacy of litigants caused by making their judgments searchable through web search engines – or at least, only partially and insufficiently achieved that goal, inasmuch as the decision did not effectively restrict indexing of the judgments by third parties that post them to their sites. In regard to the least harmful means, the Court was of the opinion that there were alternatives that could achieve similar, if not better results without violating the Petitioner’s freedom of occupation and the principle of open justice. As for proportionality, the Court was of the opinion that the benefit of the decision did not justify its cost. The benefit to litigants, if any, that derived from the decision was minor, while the harm to open justice, and primarily to freedom of occupation, was significant. It is difficult to permit a decision that yields such a situation to stand, with all due sympathy for the proper intentions.

 

In view of the above, the Court voided the Respondent’s decision, such that the Petitioner would continue to enjoy direct access to the judgment database without undertaking to make its websites unsearchable by web search engines.

Voting Justices: 
Primary Author
majority opinion
Author
concurrence
Author
concurrence
Full text of the opinion: 

In the Supreme Court sitting as the High Court of Justice

 

HCJ 5870/14

 

Before:                                    The Honorable Deputy President E. Rubinstein

                                    The Honorable Justice E. Hayut

                                    The Honorable Justice U. Vogelman

           

 

The Petitioner:

 

Hashavim H.P.S. Business Information Ltd.

 

                                    versus

 

The Respondent:

 

                                    The Courts’ Administration

                                   

                                    A petition for Order Nisi

 

Date of session:           11 Av 5775; July 27, 2015

 

Adv. Ofer Larish, Adv. Sivan Neumark Zuriel

                                    On behalf of the Petitioner

 

                                    Adv. Avi Milikovski

                                    On behalf of the Respondent

 

Adv. Avner Pinchuk

                                    On behalf of the Association for Civil Rights in Israel

 

Adv. Assaf Pink

                                    On behalf of the Association for Digital Rights in Israel

 

 

 

Judgment

Deputy President E. Rubinstein

 

  1. This is a Petition challenging the decision by the Courts’ Administration (hereinafter: the Respondent), which requires signing a “Letter of Commitment” in order to gain access to its database of judgments and decisions. The “Letter of Commitment” includes, among others, a prohibition against indexing the information in a manner that would allow finding it on internet search engines such as Google and Bing. 

 

Background and Prior Proceedings

 

  1. The Petitioner is a commercial company, whose primary business is operating internet websites which provide the public with information for a fee. The relevant websites for our purposes are “Takdin” and “Takdin Light” (how nice it would be had “Light” would have been given a Hebrew term) where judgments and other decisions (hereinafter, for the sake of convenience: judgments) of various courts may be found. The two websites contain a similarly database of judgments which are “pulled” from the Respondent’s judgments database, but are distinguishable by the business model upon which they rely.

Access to Takdin is conditioned upon a subscription fee of about NIS 2,000 a year, whereas Takdin Light allows the purchase of a digital copy of a single judgment for NIS 26. Even prior to the purchase and without commitment, any person may use Takdin Light in order to locate a particular judgment and read its first 2,500 characters. The different business models led the Petitioner to decide to permit the indexing of Takdin Light, as opposed to Takdin. Indexing is a process that enables finding the website, or parts of it, through web search engines. In other words, when we search through a web search engine a name of person mentioned in a judgment, we will receive as a result a hit that refers to the judgment in Takdin Light, but not a hit that refers to Takdin. It should be noted that according to the Petitioner, 94% of the visitors to Takdin Light arrive at the site through the web search engines. A person whose name appears in the judgment published on Takdin Light may approach the Petitioner and the latter would immediately remove the document from the free site. However, for several weeks later the judgment will still appear as a hit on web search engines. The Petitioner offers quick removal from the web search engines as well for a fee of NIS 50, which is intended – according to the Petitioner – to cover its costs of reaching out to the web search engines.

 

  1. On April 28, 2008 the Petitioner signed, per the Respondent’s demand, a letter of commitment whereby it obligated to post only documents that may be published subject to any law, and to not bring any civil claims against the courts’ administration should it be sued by any third parties as a result of publishing the information. On January 15, 2013 the Respondent reached out the Petitioner and required, in order to continue the Petitioner’s access to the judgments database run by the court’s administration, the signing of an updated letter of commitment. Section 10 of the updated Letter of Commitment states that “I am aware that granting access to the information in my possession through open web search engines, such as the ‘Google’ web engine and others, may in itself constitute violation of privacy or constitute an unlawful publication, and thus I commit to take all necessary steps in order to prevent indexation of decisions and judgments passed through it in these web search engines.”

 

  1. Following the letter, two meetings between the Petitioner’s representative and the legal counsels of the courts’ administration and the Ministry of Justice’s Information and Technology Authority (hereinafter: ITA), which ended with the Petitioner being requested to submit technical information as to its activity. The information was provided by the Petitioner on May 16, 2013. On November 5, 2013 the Respondent notified the Petitioner that to the extent that it does not prevent indexation of the information it “pulls” from the Courts’ Administration’ judgments database, its access to the database would be blocked beginning on January 1, 2014. The Petitioner was granted a period of 14 days to submit its written objection. At the Petitioner’s request, it was given an additional 21 days to submit its written response, which it submitted on December 17, 2013. On January 28, 2014 a meeting was held in the Respondent’s offices, during which the Petitioner was given the opportunity to supplement its arguments orally. On June 15, 2014 the Respondent notified the Petitioner that in the absence of signing the updated Letter of Commitment, access to the Courts’ Administration judgments databases would be blocked. On August 18, 2014, after several delays from the Respondents and several requests by the Petitioner to receive reasons for the decision, an email was sent from the Courts’ Administration, which said that a company that fails to sign the updated Letter of Commitment by September 8, 2014 would be disconnected from the judgments database. An explanatory letter from the Respondent’s legal counsel was attached to the email. It should be noted that the opinion by the ITA, which served the Respondent in making its decision, was not provided to the Petitioner, despite its request for it. On September 1, 2014 this petition was submitted against the Respondent. The Respondent’s attorney has consented to delay the effect of the decision dated August 18, 2014 until our decision in this petition. In the absence of a written response by the State Attorneys Organization, for organizational steps, it was agreed during a hearing from March 4, 2015 that the hearing be postponed and that postponed hearing be conducted as if an order nisi had been granted. We shall further note, that a class action suit submitted against the Petitioner is pending in the Tel Aviv Yaffo District Court (before Deputy President I. Inbar) in Class Action 34134-01-12. The suit was filed by people who claim that their privacy was violated due to the publication of their names on the website. Under the decision of the District Court from June 16, 2015, the adjudication of that case will continue after a decision is handed down in the petition before us here.

 

The Petitioner’s Claims

  1. The Petitioner’s arguments attack the decision by the Respondent on three levels – the authority to make the decision, the procedure by which it was made, and the discretion at its base. We shall begin with the arguments regarding the issue of authority. According to the Petitioner, the point of departure in this regard is section 70 of the Courts Law [Consolidated Version], 5744-1984 (hereinafter: “The Courts Law”), which sets publishing of judgments as a rule and confidentiality as the exception. To the Petitioner, diverging from this rule requires explicit legislative authorization. The lack of the authorization is particular serious, so it was argued, because we are concerned with primary legislation that infringes both the principle of a public hearing and the rights of the Petitioner – the right to free occupation, the right to property and the principle of equality. According the Petitioner, the decision was made by the Courts’ Manager, who is not authorized to do so. It was maintained that the Courts’ Manager fills a managerial role that is not necessarily held by a judge, and whose responsibility is limited to executing administrative arrangements set by the Minster of Justice under section 82 of the Courts Law. Therefore, establishing substantive arrangements as to the publication of judgments – such as the decision dated August 18, 2014 – is not within the Courts’ Manager’s authority. It was also argued that the authority over this issue was granted explicitly to the Minister of Justice in section 83(a)(2) of the Courts Law, which stipulates that “the Minister of Justice may enact in regulations – […] publishing courts’ judgments.” According to the Petitioner, there are several substantive matters that the Minister of Justice explicitly delegates to the Courts’ Managers, such as hearing cases during recess, but the issue at hand is not one of them. The Petitioner reminds us that the Minister of Justice appointed a committee, headed by retired Supreme Court Justice Professor I. Englard, for the examination of matters relating to publishing identifying details in courts’ judgments and decisions (hereinafter: Justice Englard Committee), and this still sits in consideration. The appointment of the committee indicates, according to the Petitioner, that the Minister of Justice did not intend to delegate the authority to regulate this issue to the Courts’ Manager.

 

  1. As to the procedure by which the decision was made, it was argued this was made with a number of flaws. First, the Petitioner maintains that the non-disclosure of the ITA opinion, despite its request, infringes upon its right to make arguments as part of a proper administrative due process. It was additionally argued that the fact that the Respondent did not change its position as a result of the hearing process indicates that the hearing was a matter of mere formality, in a manner that does not substantively uphold the right to make arguments. Finally, that Petitioner maintains that the reasons given by the Respondent does not address the arguments raised during the hearing, and does not present the factual foundation upon which the decision relied. Therefore, it was argued that the Respondent did not meet – substantively – the duty imposed on any administrative authority to give reasons.

 

  1. On the discretion level, the Petitioner has several arguments. First, it claimed that the decision was made for an unworthy purpose. This is so because the general public, as opposed to individual people, has no right to privacy. One’s right to privacy is considered by the court upon the submission of a motion to make a case confidential and there is no place – according to the Petitioner – to provide additional protection to the general public, at the expense of other values such as a public hearing. It was secondly argued, that the current state of the law grants paramount status to the principle of a public hearing, which prevails the right to privacy. To substantiate this claim, the Petitioner refers us to several sources of law, including relevant sections of the Defamation Law, 5725- 1965. Thirdly, it was maintained that the decision by the Respondent violates the principle of equality because the meaning of the decision is limiting the access to judgments only to professional jurists, rather than the general public. In the Petitioner’s approach, this harms the group of unrepresented adjudicating parties who rely on themselves for legal representation. Fourth, it was argued that the decision is an infringement of the Petitioner’s freedom of occupation, as the operation of Takdin Light constitutes a significant portion of its income. As noted above, the Petitioner claims that 94% of visitors of Takdin Light reach the site through web search engines. In light of all of the above, the Petitioner maintains that the Respondent must select a less restrictive mean, such as instructing the courts to reduce the publication of personal details which are not necessary for the decision.

 

The Respondent’s Arguments

  1. According to the Respondent, the principle of a public hearing does not require making court judgments accessible through web search engines, and in any event limiting their indexing requires no explicit legislative authorization. The Respondent additionally notes that certain restrictions on using the Courts’ Administration judgments database were already included in the Letter of Commitment from 2008, as to which the Petitioner makes not claim of lack of authority. It was also argued that the Respondent is subject to the Privacy Protection Law, 5741-1981 by virtue of it being an “administrator of a database” as defined by section 7 of that Law.

 

  1. As for the process of making the decision, the Respondent argues there was no flaw to it. The Petitioner was granted the right to make arguments both in writing and orally, given several extensions, and it was agreed to postpone the date the decision would come into effect. The Respondent claims that an administrative authority is under no duty to accept the arguments raised at a hearing and thus the lack in a change in its position does not reveal any flaw in the hearing process. Additionally, the Respondent’s letter from August 18, 2014 includes detailed reasons that were the basis for the decision, so that the duty to give reasons was also flawless.

 

  1. On the discretion level, the Respondent notes the harm caused to the privacy of litigating parties as a result of posting their names on web search engines – a harm that is distinguishable from the publishing of their names in “closed” legal databases such as Takdin, which are used primarily by jurists for professional needs. It was also noted that exposing the names of parties on web search engines creates a “chilling effect” that discourages people from turning to courts in a way that harms the right to access courts. The Respondent argues that this harm is primarily acute in labor courts, when employees who approach the courts fear that the publishing of their names may harm their chances of finding future job. It was therefore argued that reversing the Respondent’s decision is that which would infringe the right to access courts, not the other way around. In this context, we recall the Petitioner’s response claiming that it is unclear which factual data the Respondent’s arguments rely, as the number of those approaching courts increases each year. It was emphasized that preventing publication of judgments in the web search engines is not equivalent to a “gag order” because the judgments still appear in different internet websites in a manner that balances public hearing on one hand and the right to privacy on the other. It was also argued that the Respondent’s decision does not violate the principle of equality and that the argument was raised for financial motivations alone. As for the violation of free occupation, the Respondent noted that not every administrative decision with implications to a businesslike body can be considered a violation of free occupation. In this regard it was argued that to the extent there is a violation of free occupation, then this is proportional in light of the alternative violation of the privacy of litigating parties. The Respondent argues that it explored taking less restrictive measures “however this exploration has, at this time, yielded no results.” Finally, it was claimed that though the decision may not be optimal, this does not warrant legal intervention that is reserved only to decisions that are unreasonable.

 

The Positions of Those Seeking to be Joined as Amicus Curiae

  1. In this case, two motions to be joined as amicus curiae were submitted. The first motion was submitted by the Association for Civil Rights (hereinafter: the Association), and the second by the Movement for Digital Rights (hereinafter: the Movement.) The two motions objected to granting the Petition, and these are their reasons: the Association’s motion describes how technological development brought upon a sharp change in the level of litigating parties’ exposure, though the legal rule remained as it was. This is still true while when the right to review judgments existed in the past, the infringement of privacy in times before the internet – a time when judgments were published in printed copies alone – was in effect highly limited (this is referred to as “practical obscurity”). Thus the Association argues that the new technological reality requires a shift from the binary approach of “private or public” to an approach of information accessibility. This approach considers not just the publishing of information but also the impact of publication. For example, the Association notes the report by the Committee for the Examination of Opening Israeli Courts to Electronic Communication, which mentioned the increased exposure of litigating parties as one of the considerations against direct broadcasting of court hearings. The Association also notes the “aggregation problem” whereby the accumulation of details of information – which each in itself raises no significant objection to its publishing – creates a real violation of privacy.

 

  1. The Movement argues, that publishing judgments in “closed” databases such as Takdin fully realizes the right to review, while only somewhat infringing upon privacy right. On the other hand, publishing judgments in “open” databases such as Takdin Light – the judgments therein may be located through web search engines – equally satisfies the right to review but severely violates the right to privacy. As to the claim regarding a lack of authority, the Movement claims that the Respondent’s authority is established in regulation 5(b) of the Courts and Labor Courts Regulations (Review of Files), 5763-2003 (hereinafter: Files Review Regulations) which states that “in a general permit for review, the Courts’ Manager may set any condition or arrangement necessary for the balance between the need to review and the potential harm to litigating parties or to third parties due to the review…” The Movement maintains that the Petitioner’s argument regarding flaws in exercising the administrative discretion must be rejected. It claims that permitting indexation in the Takdin Light website causes severe harm to the privacy of litigating parties, and the possibility of removing the document from the website for a fee does not qualify the harm. It was additionally argued that the operation of the Takdin Light website is particularly egregious because the Petitioner takes active steps to make the website appear as one of the first hits presented by the web search engines. So, for purposes of illustration alone, searching the name “Shnikav” in Google’s search engine produces reference to Takdin Light’s site on the first results page, despite the fact that there is no judgment which addresses a person of that name. It was argued that the referral to the Takdin Light website is par for the course of the Petitioner’s active steps which may mislead a person seeing that there are judgments for that same Shnikav, should that person fail to click the link and realize the mistake. We shall note here that the latter argument is not directly related to the petition at hand, but is raises a weighty issue which we see fit to address below.

 

Discussion

  1. In the hearing before us, the Petitioner’s attorney argued that though the Respondent does indeed have the authority to set technical limits for companies given access to the courts’ judgments database, but it is not within its authority to set substantive restrictions – which is the case before us. The importance of web search engines to the general public, who uses them as a nearly exclusive source for its legal knowledge, was emphasized. It was also emphasized that we are concerned with a matter of policy that necessitates an organized legislative process. Therefore, it was argued, the recommendations of the Justice Englard Committee must be made before making significant changes to the current situation. The Respondent’s attorney recognized that the demand to prevent the indexation prevents not just the ability to search litigants’ names, but also the ability to search “legitimate” legal terms such as “breach of contract in good faith”, but he claims that at this time it is technologically impossible to only partially prevent the process of indexation. The Respondent’s attorney further emphasized to us that the conclusion of the Justice Englard Committee’s work is yet unforeseeable and that it is necessary to take intermediate steps in order to prevent the harm currently caused to the privacy of litigating parties. The Association’s attorney stated that the state holds many databases, such as the land registry, the public’s full access to which via web search engines would cause a grave infringement to the public’s privacy, this despite the fact that even now it is possible to receive information from such databases through individual requests to the relevant bodies. The Movement’s attorney emphasized that the Petitioner’s conduct leads not only to over exposure of litigating parties, but also creates a misrepresentation whereby the name of a person appears in a judgment, even when reality is completely different (see paragraph 12, above). It was also argued, that the Respondent’s policy does not cause a real harm to the Petitioner, because the latter may become in possession of the judgments even were its access to the Respondent’s database to be blocked – this by copying the documents published on the Respondent’s website or by any other means.

 

Decision

  1. The matter before us raises complex questions as to the intersection between law and technology and serves as an important reminder to us – judges – that the judgments we write while aspiring to accomplish justice may, by virtue of their publication, cause injustice to litigating parties (see my decision in CA 438/14, John Doe v. The Israeli Database for Car Insurance (February 6, 2014) (hereinafter: the Car Insurance Database case.) This case is a testament again, as other cases in our times, that the law lags behind technological progress and the legal problems it poses, it chases them but does not catch up. This is the case in areas of the internet and the virtual, and this is the case in matter of intellectual property and others (see Michal Agmon-Gonen, The Internet as a safe Harbor:  Legal Regularization In Light of the Technological Possibilities for Circumvention and the Global Nature of the Net, Law, Society and Culture – Legal Net: Law and Information Technology 433 (2011), Amal Jabarin, The Role of Law in Regulating the Internet through the Perspective of Economics Approach to Law, Kiryat HaMishpat 7, 233 (2008)). In the introduction to the book Intellectual Property: Interdisciplinary Reviews (eds.: Miryam Markovitz-Bitton and Lior Zemer (in print)) I had the opportunity to say: “the chase after technology and its tentacles is not unique to the world of intellectual property. It applies to many areas in the law, in particular is the connection between the great virtual world to criminal law, defamation and many others, and the issues that arise from each of these.” This case reveals a conflict between the freedom of information and the public’s right to know (including corporate information) and the right to privacy, which elicits “genetic sympathy”, based in values, in order to prevent as much as possible that one’s past follow them indefinitely, and the computer after all does not forget.

 

  1. In this context, recall the judgment by the European Union Court of Justice which compelled Google to remove a link to a story that included details of an offence committed by a person many years prior (C-131/12, Google v. Agencia Espanola de Proteccion de Datos). Some have termed this the “right to be forgotten” (see Yehonatan Klinger, The Right to be forgotten? Apparently Not in Israel, in the blog Intellect or Insanity (February 2, 2015) http://2jk.org/praxis/?p=5368)). It should be noted that the “right to be forgotten,” as defined by the European decision, requires that the search engine examine individual requests to remove links, but the decision does not expand as to the considerations which must guide decisions regarding such requests. As a result, it is hard to say whether – according to the European Court – there is a “right to be forgotten” also from official and lawfully published case law. So far it seems that American law has not adopted the “right to be forgotten” (see the U.S  Court of Appeals for the Ninth Circuit in Garcia v. Google Inc., 786 F.3d 733, 745-46 (2015)). This comes from a long-standing general position of the superiority of free speech (see Steven Bennet, the “Right to be Forgotten”: Reconciling EU and US Perspectives, 30 Berkeley J of Int’l L. 161, 169 (2012)). In the Israeli context, we shall note that a certain aspect of this issue was regulated in the Criminal Registration Law, 5741-1981, which sets guidelines for running the criminal registration database – including the process of expunging (deleting registration) after 10 years have passed since the end of period of limitations on the conviction had elapsed (section 16 of the Law). The Law’s explanatory notes state that “the basic principle behind the proposal is that – aside from unusual matters – one should not be remembered by their wrongdoing for their entire lives and must be instead permitted to turn over a new leaf and that full rehabilitation and fully reintegration into society must be encourages.” (Bills 1514, 216; and see Nahum Rakover, The Status of an Offender who has Served His Sentence (5767-2007)).

 

  1. Back to the matter before us, the issue raised is whether indeed the step taken by the Respondent meaningfully and effectively contributes to protecting the right to privacy, and whether this contribution justifies the accompanied harm caused to the principle of a public hearing. The decision in this case will follow these steps: first, we shall explore whether the Respondent’s decision was made within its authority. Then we shall explore the process of making this decision and whether it maintained rules of natural justice. Finally, we shall examine the administrative discretion at the basis of the decision and its reasonability.

 

Authority

  1. The principle of administrative legality – which is the foundation for administrative law – instructs us that an administrative authority is limited in its action to the four walls it was granted by the legislature (HCJ 1/49, Bejerano v. The Minister of Police, IsrSC B 80 (1949) (hereinafter: the Bejerano case); HCJ 1405/14, Professor Salwin v. The Deputy General Director of the Ministry of Health (2014)). This is in contrast to a private citizen, who is free to do as she pleases so long that there is no law to limit her. In other words, the difference between the private and public entity is the premise as to the lawfulness of their actions. The administration requires individual permission, whereas the private citizen is free in the absence of a specific prohibition. Saying “From any tree of the garden you may eat freely; But from the tree of the knowledge of good and evil you shall not eat” (Genesis 2:16-17). The legislative authorization is not a mere technical legal requirement, but rather the administrative authority needs it in order to secure the public’s trust in its activity, which is funded by public resources (see Baruch Bracha, Administrative Law, vol. 1, 35 (5747-1986)). As said by the scholar Zamir: “The principle as to administrative legality is necessarily rooted in the actual nature of democracy. Democracy grants sovereignty to the people. The people is that who grants the government and any other administrative authority, through laws, all the authorities they hold and they hold but the authorities granted to them by law.” (Itzhak Zamir The Administrative Authority vol. A 50 (5756-1996) (hereinafter: Zamir). Moreover, in plain language free of legal jargon, an administrative authority’s exceeding of its authority holds totalitarian characteristics – law at one end and reality at the other. However, the administrative authority must not be paralyzed in its operation to the benefit of the many, and we shall return to this. As a general rule, that administration is granted the discretion as to whether and how to use the authorities granted to it, but there are instances where such discretion is particularly narrow, to the extent of imposing duties on the administration to exercise its authority (LCrimA 7861/03, The State of Israel v. The Local Council of the Lower Galilee, para. 16 of Deputy President Cheshin’s judgment (2006); Daphna Barak-Erez Administrative Law vol. A 216 (5770-2010) (hereinafter: Barak-Erez.))

 

  1. Authorization for the actions of an administrative authority need not be found explicitly in primary legislation. Rather, secondary legislation may also be recognized as a source for authorization (Zamir, 131.) However, where the administrative action infringes basic rights – authorization sourced in secondary legislation is insufficient. This was mandated by the Limitation Clause in section 8 of Basic Law: Human Dignity and Liberty: “One is not to violate the rights accordance by this Basic Law save by means of a law…” (emphasis added – E.R.) This provision was expanded through case law to include basic rights enshrined in other statutes (EA 92/03, Mofaz v. Chairman of the Central Elections Committee, IsrSC 57 (3) 793, 811, para. 17 of then Justice Matza’s judgment (2003)). A similar rule applies also to “primary arrangements” which require – due to their importance – anchoring in primary rather than secondary legislation. In the words of President Barak:

“It is a basic rule of the public law in Israel that where a government activity is based in a regulation or an administrative instruction, it is appropriate that the general policy and principal standards that guide the basis of the action be sourced in primary legislation which permits the regulation or the administrative instruction. In more ‘technical’ terms, this basic rule means that ‘primary arrangements’ that set the general policy and the guiding principles must be established by Knesset legislation, whereas the regulations or the administrative instruction must set only ‘secondary arrangements.’” (HCJ 3267/97, Rubinstein v. The Minister of Defense, IsrSC 52(5) 481, 502, para. 19 of President Barak’s judgment (1998); see also Gidon Sapir, Primary Arrangements, Iyunei Mishpat 32(1) 5 (5770-2010)).

 

  1. One of the issues that often lands on judges’ desks is the level of explicit required in an authorizing statute. That is – how specific must the statute be regarding of the administrative authority’s permissible activity. Recognition of implicit authority – authority that is not written explicitly into the language of the law – stems from common sense and life experience, which teach us that reality is infinitely more complex than the ability of a flesh and blood legislature to foresee in advance. Strict insistence over a high level of specificity may thus lead to debilitating the authorities of a public administration and to obstructing normal life. The words of scholar Margit Cohen are apt here:

“No legislative system, not even the most comprehensive one, can provide full responses to any possible situation, particularly when in a modern state, whose needs and conditions change rapidly. A lack of regulation may exist even when the system is still in the process of creation and coming together. Further, a system may be characterized by refraining from regulation through primary legislation, which is rotted in geranial parliamentary weakness or deliberate failure from addressing matters of great political sensitivity. When it is possible that the law does not regulate particular areas, the outcome of this must be examined in terms of the executive authority. One possibility may be avoiding action. However at the same time there is force to the argument that the government must act even in the absence of legal arrangements and that its power to do so results inherently from its nature and from its role.” (Margit Cohen, The General Authorities of The Executive Authority 8 (5763-2002)).

 

Recall here the decision by President Beinisch in HCJ 10203/03, The National Census v. The Attorney General, IsrSC 62(4) 715 (2008), where it was noted that the “level of specificity” must be determined according to the circumstances of the matter, including the “nature of the infringed right and the reasons behind it, the relative social importance of the right, the level of its infringement, its social consequences, the identity of the infringing authority and the context” (p. 82, see also Barak-Erez, 125). A mirror image of sorts to this holding was also established in HCJ 3933/11, Maccabi Health Services v. The Minister of Health, para. 35 of Justice Arbel’s judgment (2014), where it was held that a “level of specificity” must be low where it is necessary in order to authorize the administration authorities to protect basic rights. I will emphasize – as in other cases – common sense. It must be examined often whether the circumstances support strictness or a flexible approach, while inferring the intent of the legislature appropriately. The authority serves the public. Thus, to the extent that it is recognized that its authorities are exercised in good faith in order to provide service, the Court does not bar its actions. If, god forbid, it is clear that irrelevant considerations, arbitrariness, or lack of good faith taint the authority’s action, the approach would of course be different. The authority is not the master of the individual but rather its servant, as well as the servant of society as a whole, and balancing its authorities must carry that always, including when considering principled questions such as protecting one’s privacy and minimizing the harm as much as possible within the contours of the law.

 

  1. And from the general to the specific. The Courts’ Administration is regulated constitutionally in Basic Law: the Judiciary and in the Courts Law (Consolidated Version) 5744-1984. Section 24(1) of Basic Law: The Judiciary lists “the regulations of the administration of the courts, the establishment of such regulations and the responsibility to execute them” among the matters for which “instruction shall be set by law.” Section 82 of the Courts Law states that “(a) the Minister of Justice shall set the administration regulations of the courts and shall appoint, with the consent of the President of the Supreme Court, the Courts’ Manager, whether a judge or not; (b) the Courts’ Manager shall be responsible to the Minister as to the execution of the administration regulations”; see HCJ 4703/14, Sharon v. The President of the Supreme Court (November 30, 2014), paragraphs 10-11. Among others, it was said in paragraph 11 there that “the Manager… is charged with the administrative operation of the system…” and that he has additional authorities, as listed there. Do such authorities cover our matter as well?

 

  1. As recalled, the Respondent’s decision conditions continued access to its database upon barring the indexation of judgments found in the database. The practical meaning of this decision is that the Petitioner is barred from posting the pages of Takdin Light to web search engines and from attracting potential clients by doing so. The prevention of posting to web search engines may cause severe harm to the Petitioner’s business, as most of the visitors to its site arrive there through a “Google” search (it claims, as mentioned, that these are 94% of the visitors to Takdin Light, whose activity is responsible for about 20% of the Petitioner’s income.) It is clear that limiting the Petitioner’s ability to publish its services is a violation of the freedom of occupation itself (see HCJ 4000/93, Canval v. Israel Bar Association, para. 9 of President Barak’s judgment (1997)). The publication is an essential component in the chain of business activity, which of course includes many stages and cannot be reduced solely to the process of sale to end consumers. Harms to the chain of business activity – whether in the planning, production or marketing phases – may amount to a violation of the freedom of occupation. As a side note, I should point out that preventing commercial advertizing and publications may also constitute a violation of the freedom of speech, as said by Justice Dorner: “Commercial speech is not a step child to free expression, but it is among its organs” (HCJ 606/93, Kidum Entrepreneurship and Publishing Inc. v. The Broadcasting Authority, IsrSC 48(2) 1, 10 (1994)). It is true, that a violation of free commercial speech is less significant that harm to free political speech (HCJ 5118/95, Meir Simon Inc. v. the Second Authority for Television and Radio, IsrSC 49(5) 751 (1996); HCJ 15/96, Thermokir Horashim v. the Second Authority for Television and Radio, IsrSC 50(3) 397 (1996)), but this does not mean that commercial speech may be violated thoughtlessly. Therefore, before us is a not insignificant violation of the basic rights of a private body by a public body. Such violation requires authorization in primary legislation.

 

  1. As was already previously written, the Respondent does not point to a specific source of authorization for the basis of its decision, but rather argues that as a general rule there is no need for authorization in law. This is because, arguably, the law does not mandate publishing judgments on web search engines. For our purposes here, and without setting anything in stone, I am willing to assume that indeed the Respondent is not obligated to publish the judgments on web search engines, and that it is possible – from the law’s perspective – to be satisfied with publication through other means. However, the mere fact that the Respondent is under no duty to publish the judgments on search engines does not mean, necessarily and inherently, that it is permitted to prevent this from private bodies. The status of the Respondent’s authority to publish judgments – whether it is permissible or obligatory – is irrelevant to the issue of its authority to prevent publication by private bodies. These are two distinct actions – publishing and preventing publishing – each of which seemingly requires statutory authorization. Another interpretation – whereby it is within the authority of an administrative authority to prevent activity which it is not statutorily obligated to commit on its own – does not fit common sense and means the emptying of the principle of legality, which mandates that the individual is free to do as she pleases in the absence of any other legislative provision. We thus find, that the Respondent is not exempt from presenting a statutory source to authorize its decision. As written, the Respondent’s decision to limit the Petitioner’s access to the judgments database violates its freedom of occupation – and this, without authorization in primary legislation, must not be permitted.

 

  1. The Respondent argues that the Petitioner signed the letter of Commitment in 2008 demonstrates that it was within its authority to limit access to the database. Without causing offense, I believe this is an argument that is hard to accept. First, the letter of Commitment from 2008 is not similar to the current one. The first letter of Commitment is substantially limited and it primarily limits publications that are prohibited by any law. It seems that is not a meaningful limitation, as opposed to the current prohibition against indexation of judgments. In other words, it makes sense that conditioning access to the database was within the authority so long as the requirement was obeying the law, but not so when the requirement exceeds this. Second, and this is the main point, the Petitioner’s consent to signing a letter of Commitment is irrelevant to the question of authority. The authority requirement is not dispositive and the administrative authority may not exempt itself from it, even with the agreement of the parties. Recall, that one of the rationales at the foundation of the authority requirement is the people’s control, through its representatives, over the public administration. It is clear that the administration may not free itself from this control through the consent of one individual or another out of the general public. Appropriate here are the words of the scholar Shalev:

“Clearly, a contract that exceeds the lawful powers and authorities of the authority, as established by the authorizing law, is an unlawful contract that is therefore void. A contract may not expand the authority’s powers, or grant it authorities, or allow it to act outside of the bounds of its lawful authority. This is the distinction between the public administrative authority (aside from the state, whose powers and authorities are unlimited) and the individual: the authorities of the public authority and its capacity are restricted and thus her contracts as well require a statutory source.” (Gabriela Shalev Contracts and Tenders by the Public Authority 49 (1999); see also Barak-Erez, vol. 3 259.))

 

  1. The Movement for Digital Rights wished to defend the Respondent, and to find the source of the authority for its decision in regulation 5(b) of the Files Review Regulations. This is the language of the section:

“(b) The Courts’ Manager may establish in a general permit for review any condition or arrangement that is necessary in order to balance the need for review and the harm that may be caused to litigating parties or a third party due to the review, including redacting of details, limiting the number of reviewers and taking steps to prevent the identification of parties or people. Additionally, the Courts’ Manager may refuse to give a general permit of review or establish conditions or arrangements for its implementation considering the necessary resource allocation.”

 

These words are well and good, but still – this is secondary legislation that cannot serve as a source of authority for violations of fundamental rights. As it was written above, administrative decisions that infringe upon basic rights – and such is the decision before us – must pass muster under the Limitations Clause, whose first element is authorization in primary legislation. Additionally, it is highly doubtful whether the Review Regulations are relevant to the matter here, because commercial companies that enter into contracts with the Courts’ Administration – such as the Petitioner – do not do so as a result of a general review permit. Rather this is a completely different procedure.

 

  1. A different possibility that was presented was recognizing the Privacy Protection Law, 5741-1981 as a source behind the authority for the Respondent’s decision. According to this explanation, the Respondent is the “operator of a database” as defined by section 7 of this Law. Therefore, as revealed by the Respondent’s arguments, it is obligated to comply with section 8(b) of the Law: “No person shall use the information in a database that must be registered according to this section, but for the purpose for which the database was established.” This should be joined with section 17 of the Law whereby “an owner of a database, a holder of such database or the operator of a database, is each responsible for safeguarding the information in the database.” This is the root, it was argued, of the authority at the basis of the Respondent’s decision. I am afraid that this interpretation is not devoid of difficulties. The first difficulty is technical in its nature, and it concerns the question whether the Respondent operates a database for purposes of section 7 of the Law. If so – as the Petitioner’s attorney has noted – its judgments database is not registered in the register of databases. The second difficulty – and this is the main one – goes to the matter of the purpose of the Respondent’s database. On its face, and with no party claiming otherwise, the judgments database exists for the purposes of realizing de facto the principle of a public hearing. The Courts’ Administration collects the judgments, publishes them on its website and allows commercial websites direct access to them – all for the purposes of benefiting the public, so that “the wise may become wiser still” (Mishley, 9: 9). If so, does the indexation of judgments constitute a use that exceeds the purpose of which the database was established for? I believe that the answer is not in the affirmative. The indexation of the judgments constitutes in itself a “step up” in making legal material accessible to the general public, thus generally serving the purpose for which the database was established. Still, the “step up” in making judgments accessible creates a parallel increase in the violation of litigating parties’ privacy with the human sensitivities involved, and it is certainly possible that the administrative authorities must give thought to this and seek solutions (and of course this would naturally apply to the Justice Englard Committee) – however the administration must do all this only with permit and authority. This ends our discussion in the level of the authority, and a source for authorizing the Respondent’s decision – in its face, is nonexistent. Beyond the necessary scope, we shall continue our examination of the decision along the two other levels – the level of the procedure for making the decision and the level of the discretion upon which it relied.

 

Procedure

  1. After discussing the authority requirement that derives from the principle of legality, we shall address the requirement for proper administrative due process. Strict adherence to administrative due process is essential, and there is no need to elaborate (see Barak-Erez 262-63): meeting the requirements for a due process protects the values of fairness and equality; improves the quality of the administrative decision; allows the public to influence the decision in a democratic manner; ensures public trust in governance and administration; allows effective review over the operations of the administration; and of no less importance – prevents corruption, the creation of appealing loopholes and a slippery slope in the style of countries and administrations to which we do not wish to resemble. The duty to hold an administrative due process includes, among others, holding a hearing for parties who may be affected by the decision (HCJ 598/77, Eliyahu Deri v. The Parole Board, IsrSC 32(3) 161 (1978); LCA 2327/11, John Doe v. John Doe, para. 22 of Justice Danziger’s decision (2011)), giving reasons for the decision made (HCJ 142/72, Shapira v. The Israel Bar Association, IsrSC 25(1) 325 (1971); Yoav Dotan, Administrative Authorities and Elected Bodies’ Duty to Give Reasons, Mechkarei Mishpat 19 5 (5762-2002) (hereinafter: Dotan)), and exposing internal documents that substantiated it (HCJ 5537/91, Efrati v. Ostfeld, IsrDC 46(3) 501, 513, para. 21 of then Judge Cheshin’s opinion (1992); AAA  4014/11, Eid v. Ministry of Interior, para. 28 of Justice Barak-Erez’s judgment (2014)).

 

  1. In this context it seems that the Petitioner’s claims as to the administrative process touch on three aspects: the hearing, the reasoning and the disclosure of internal documents. I shall already note here that I do not believe the arguments ought to be accepted. We are not concerned with night time “grab”, but a serious and prolonged administrative process throughout which the Petitioner was permitted to express its opinion as to the decision, and indeed several extensions were provided for such purposes (see the email correspondence between the Respondent and the Petitioner on the dates of Nov. 18, 2013; Dec. 26, 2013 and July 1, 2014.) The hearing was provided both orally and in writing, with the Petitioner furnishing the Respondent with relevant information. Accepting the Petitioner’s argument whereby the fact that the Respondent did not change its mind during the hearing indicates that the hearing was conducted for appearances’ sake alone – would mean imposing a duty on administrative authorities to necessarily change their positions as a result of a hearing. This, of course, is unacceptable and it is hard to believe that the Petitioner itself holds this view.

 

  1. As for the duty to give reasons, the Respondent noted in its letter from August 12, 2014, among others, that the rationale behind the decision was the desire “to protect the privacy of the litigating parties, private information about whom was exposed on the internet to any inquiring eyes” and that it “is permitted to put in place reasonable conditions to proportionately balance the principle of a public hearing and the interest in guarding the privacy of litigating parties before granting access to servers.” On its face, this is sufficient for meeting its administrative duty to give reasons for its decisions. Indeed, in a legal sense, in order to fulfill the duty to give reasons, there is no requirement that the reasons are lawful or based in law. See for this issue, the words of the scholar Y. Dotan:

“Even a decision whose reasons are completely wrong – is a reasoned decision. The flaw in the decision is a substantive flaw on the merits, but it is not a flaw to the procedural duty to give reasons. When the authority gave reasons – and even reasons that are completely wrong, the reasoning ‘played its part’ and it is now possible to subject the decision to review on the basis of the reasons given.” (Dotan, 50).

 

These things are presented for the completeness of the legal picture, but in simple terms, god help an authority whose reasons are wrong and god help a public the reasons of whose servants are wrong, because – in other words – they may not be performing their duties adequately.

 

  1. And now – to the Respondent’s decision not to disclose the ITA opinion, upon which it relied its policy as to the indexation of judgments, to the Petitioner. As noted above, the representative of ITA refused to send to Petitioner the opinion (see the email from November 21, 2013.) Seemingly, there is no substantive reason not to disclose the legal opinion since it does not concern national security, confidential methods of action or protecting the privacy of a third party (Barak-Erez 506-508.) And still, and without setting things in stone, it should be noted that it is not impossible that the ITA opinion constitutes “internal consultation” for the purposes of section 9(b)(4) of the Freedom of Information Law 5758-1998, which exempts the administrative authority from providing such information (AAA 9135/03, The Council for Higher Education v. Ha’aretz Newspaper Publishing, IsrSC 60(4) 217 (2006)). It therefore appears that the issue is whether the Respondent met its administrative duty to permit the Petitioner to review documents that informed its decision (see HCJ 7805/00, Aloni v. The Jerusalem City Comptroller, IsrSC 57(4) 577, para. 18 of Justice Procaccia’s judgment (2003)). Let us note, that the Petitioner continued its long email correspondence with the Respondent without referencing the matter again, in a manner that may be understood as the Petitioner’s abandoning its request to review the opinion. We shall further note that the Respondent did properly give reasons for its decision (see paragraph 26, above.) As known, not every flaw in an administrative decision would inherently and necessarily lead to its voidance (CA 4275/94, The Stock Exchange v. The Torah Literature Database Management Ltd., IsrSC 50(5) 485, 509 para. 22 of then Justice Orr’s opinion (1997); AAA 2339/12, Shohat v. The Kfar Saba Local Committee for Planning and Construction, para 49 of Justice Shoham’s judgment (2013)). It therefore seems, without making any determinations in the matter, that it would not be appropriate to void the decision because of the Respondent’s refusal to disclose the opinion.

 

The Discretion

  1. So far we have been concerned with the source of the authority to make the decision, and the way in which it was made. We now open the “black box,” and look inside at the decision itself and its content. At the outset, we shall note that this Court does not rush to intervene in the discretion of an administrative authority, and particularly not where we are concerned with decision that are within its professional expertise (HCJ 338/87, Margaliot v. The Minister of Justice, IsrSC 42(1) 112, 116, para. 6 of Justice Bach’s judgment (1988); HCJ 7510/05, Lotan v. the Minister of Industry, Commerce and Employment, para. 23 of Justice Joubran’s Judgment (2006)). Still, we would not be performing our duties properly were we to shut our eyes to administrative decisions that substantially and extremely exceed the range of reasonability. The requirement of reasonability it closely linked to the authority requirement, and both are founded upon the democratic rationale that was reviewed above (see para. 15.) As noted, the administrative authority is limited in its actions to the four walls defined by the legislature – as the representative of the general public. It is easy to see that those four walls do not house decisions that are extremely unreasonable, as this was not the legislature’s intent. As was said by then Justice Barak:

“The balance between the different interests was charged by the legislature to the Second Respondent, and so long as it weight appropriate considerations and attributed proper weight to them, we shall not intervene. But if the considerations of the Second Respondent are based in a lack of good faith, arbitrariness, discrimination or unreasonableness – we shall not hesitate to intervene.” (HCJ 148/79, Sa’ar v. The Minister of Interior, IsrSC 34(2) 169, 178, para. 8 of his judgment (1979)).

 

Clearly, balancing conflicting interests is no simple task, which is often likened to an acrobat’s walk of a tightrope with the interested parties pulling at either end of the rope. Therefore, with the assumption of good faith, only a serious divergence from the range of reasonableness shall give rise to judicial intervention in the balancing decision made by the administrative authority. (HCJ 910/86, Ressler v. The Minister of Interior, IsrSC 42(2) 441, 518, para. 7 of President Shamgar’s judgment (1988)). In the case before us, the necessary balance is between the right to privacy of litigating parties on one hand, and the principle of a public hearing and the Petitioner’s freedom of occupation on the other. Note, that we are not required to make categorical determinations as to whether privacy must prevail or whether a public hearing and the freedom of occupation should. Were I to follow my heart, I believe I would have proposed to prefer privacy. But instead the question before us is whether the benefit to the protection of privacy, which results from the Respondent’s concrete decision (which prohibits the indexation of judgments by bodies granted direct access to its judgment database), outweighs the harm caused to the principle of the public hearing and the freedom of occupation due to the decision (see and compare CA 8954/11, John Doe v. Jane Doe, para. 121 of Justice Sohlberg’s judgment (2014)).

 

  1. Let us open with the right to privacy, which was said to “draw the line between the individual and the general public, between ‘me’ and society. It creates a space where one is left alone, to develop her ‘self’, without another’s involvement” (HCJ 2481/93, Dayan v. the Commander of the District of Jerusalem, IsrSC 48(2) 456, 470, para. 16 of then Deputy President Barak’s judgment (1994)). Indeed, one’s privacy is one’s castle. This castle is exceedingly chipped away at with the progress of technology and there are those who believe privacy is a thing of the past (A. Michael Froomkin, The Death of Privacy, 52 Stan. L. Review. 1461 (2000); see also Yair Amichai-Hamburger and Oren Paz, Anonymity and Interactivity on the Internet: The Right to Privacy as a Multi-Dimensional Concept, Privacy in The Time of Change 201 (5772-2012)), and in practical reality this is not far. The ability to photograph and record on a mobile phone that is accessible to many, and in technologically advanced societies almost to everyone, has drastically reduced privacy. However, this does not mean that the value of protecting privacy is lost to the world. Indeed, the new era brings with it new tools – with both blessings and curses – but I believe this does not necessitate complete abandonment of human dignity and his good name. The words of the scholar M. Birnhak are apt here: “Technology has a complex relationship with the legal right to privacy, similarly to the relationship between the right and social norms. At times technology affects the content of the social norm and/or the legal right, and at times the law and/or social norms influence technology. At times the law cooperates with technology and at times they compete.” (Michael Birnhak, Private Space: The Right to Privacy Between Law and Technology 45 (2011); see also Michael Birnhak, Control and Consent: The Theoretical Foundation of the Right to Privacy, Mishpat U’Mimshal 11 9 (2008)). The proper relationship with technology is not a binary. Instead we must seek a middle ground that allows us to enjoy the fruits of technology while limiting the harm to individual rights, which often follows it. This resembles the tale in the Talmud Bavli (Hagiga, 15, 72) about Rabbi Meir who studied under Elisha Ben Abuyah, one of the Tannaim who was considered heretical and hence was referred as the “Other One” in the Talmudic language. The Talmud commends Rabbi Meir for “eating the content and discarding the shell.” In other words, Rabbi Meir wisely adopted the positive sides of his teacher without taking also the other side. Jewish law considers privacy protection, among others, through the concept of “harmful watching” – an injury one causes another by looking into his domain. About the verse “What benefit is there in Jacob’s walk through Israel’s houses,” (Arithmoi, 24, 5) Rashi says instead “What good is in the houses – for no doors are direct at each other.” Bilam commends the People of Israel for their conduct to protect the right to privacy (Eliyahu Lifshitz, The Right to Privacy in Jewish Law and in State Law, Weekly Parasha 33 (2011); see also the Talmudic Encyclopedia, vol. 8 “harmful watching – Heizek Reiya”; Gidon Klogman, On Harmful Watching, Iyunei Mishpat 5 425 (1975-76); Sharon Aharoni-Goldenberg, Privacy on the Interment in the Prism of Jewish Law, HaPraklit 52, 151 (2013)). Let us recall once more, that the matter here does not necessitate weighing the right to privacy as a whole, but only the added harm to the privacy of litigating parties, which may be caused when indexing of judgments mentioning their names is permitted to bodies with direct access to the Courts’ Administration’s judgments database.

 

  1. The principle of a public hearing is an individual subset of the ideology of transparency more broadly, about which I wish to say a few words. The policy of transparence enjoyed a boost in the past years through the Freedom of Information Law, 5758-1998. This Law’s primary novelty is in the message that public information is public property – rather than the property of the administration, who holds it in trust. The Law’s explanatory notes state that: “… the seeker of the information needs not specify in the request for information, which is submitted in writing, the reason for which the information is sought… This approach is rooted in the recognition that because the information is in effect an asset among public assets, there is no significance to the question why the information is necessary to its owner.” (Explanatory Notes for section 7 of the Freedom of Information Bill, 5757-1997, Bills 2630; see also Hillel Sommer, The Freedom of Information law: Law and Reality, HaMishpat 8 437 (5763-2013)). Similar and well-known comment is found in the case law, as early as in HCJ 142/70, Shapira v. The Jerusalem District Committee of the Lawyers’ Bar, IsrSC 25(1) 325, 331 (1971), where then Justice H. Cohen wrote:

 

“The claim that in the absence of statutory duty to disclose, one may conceal rather than reveal – may be made by an individual or a private corporation… but it cannot be made by a public authority who fulfills duties under law. The private domain is not as the public domain, as the former does as it may will. If it wishes, it provides and if not it refuses. Whereas the latter is wholly created in order to serve the general public, and it has nothing of its own: all it has is put to it in trust, and in itself it has no rights or duties additional to those, or separate and different to, those which derive from such trust or that were granted to it or imposed upon it by virtue of statutory provisions.”

 

Indeed, as noted in the case law and in the Law’s explanatory notes, receiving public information is a “property” right which does not require special reasons, but I wish to point out to one benefit of opening government databases to the general public. Databases are an asset that may be useful to young entrepreneurs who may derive great public benefit from the information granted. Take for example, on the public level, the organization “The Workshop of Public Knowledge” which launched internet tools such as “Open T.B.A.” (www.opentaba.info) - a project for mapping city construction plans in a user friendly manner, which relies on information from the Israel Land Authority; or the “Open Journalism” project (www.opa.org.il) which makes accessible a multi dimensional database of newspapers which were scanned over the years by the national library and made it searchable. Such projects and others similar to them illustrate the added value the public brings when the gateways to public information held by administrative authorities are open to it. Of course, granting public information is not a process free of challenges and concerns (see Aharon Barak, Freedom of Information and the Court, Kiryat HaMishpat 3, 95, 105 (5763-2003), but public officials must also remember the benefits to it. And now specifically to the principle of a public hearing: the case law mentions three reasons to protecting this principle (see LCA 3614/97, Adv. Dan Avi Yitzhak v. The Israel News Corporation Ltd., IsrSC 53(1) 26, 45, para. 6 of Justice Goldberg’s judgment (1998) (hereinafter: the Avi Yitzhak case); HCJ 5917/97, The Association for Civil Rights in Israel v. The Minister of Justice, para. 18 of President Beinisch’s judgment (2009)). First, recognizing a public hearing as an integral part of the public’s right to know – a right which naturally derives from the existence of a democracy. As put by James Madison, who was among the drafters of the United States Constitution and a President of the United States: “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy, or perhaps both.” (Letter by Madison to William Barry – an American statesman – dated August 4, 1822.) Second, the principle of the public hearing contributes to the improvement of the quality of legal products, as a result of exposing the proceedings to the scrutiny of the general public. Apt here are the words of Justice D. Levin (CrimA 334/81, Haginzar v. The State of Israel, IsrSC 36(1) 827, 832 (1982):

 

“A major rule it is in the law, that the court adjudicates in public. This is a pillar of both criminal and civil procedure, and one of the most important means to ensure an impartial trial and a due process. On one hand, this principle opens the court up to exposure to the public and to its judgment insofar that conducting an objective trial, in judgment and discretion. On the other hand, the litigating parties, too, stand before the public, who hears everything and being aware of the facts presented to the court, may – according to the information in its possession – appropriately offer evidence to refute them. Therefore, parties may beware and be cautious to suggest to a presiding judge facts that are not reliable or have not been corroborated.”

 

Third, the principle of the public hearing is essential to the existence of public trust in the judicial system, and this additionally to the first two reasons already mentioned, and without connection to them. The sentence appearing in The Federalist (as translated by Aharon Amir, edited by Yael Hazoni, with the introduction by Ruth Gavison and Ellen Shapira, 2001), on page 388, whereby the judicial branch is the least threatening of them all to the political rights enshrined in the United States Constitution, as it “Has no influence over either the sword or the purse,” is well known. Put differently, the judiciary does not set the budget and does not head the public administration (The Federalist Papers, No. 78.) Another important element was added to this famous quote – and it is paramount in our matter – by Justice Felix Frankfurter of the Unites States Supreme Court, and it is that the Court indeed lacks a purse or a sword, but it does have at its disposal the public trust. (Baker v. Carr, 82 S. Ct 691 (1962)). The principle of the public hearing is not foreign to Jewish law (see Yaron Unger and Yuval Sinai, Public Hearing in Jewish Law, The Center for the Application of Jewish Law, (5775-2014)). We shall mention here the words of scholar Haim Cohen in his book The Law (p. 443), that the sources of Jewish law effectively enshrine the principle of the public hearing, without explicitly naming the concept:

“The widow who asserted exercising the commandment of impregnation by her husband’s brother ‘went to the elderly at the gates’ (Deuteronomy 25, 7). And ‘Boaz came to the gate’ and purchased all that Elimelech had and took Ruth of Moav as a wife before ‘all the people at the gate and the elderly’ (Ruth 4, 1 and 11). The judges (and the police men) were commanded to be present at ‘all of your gates’ (Deuteronomy, 16, 18) and they brought the prodigal son to justice ‘to the elderly of his city and the gate of his place’ (there, 21, 19). Ezra called his court to convene ‘on the street of the house of God,’ under the sky (Ezra 10, 9), and the Sanhedrin sat in its chambers at the Temple, which it convened with all 71 members. But when it sat with 23 members to adjudicate it sat at the ‘entrance to the Temple Mount’ or the ‘entrance to the auxiliary’ (Sanhedrin 88, 2), a place that was open to all the people, as the auxiliary was ‘filled with Israel’ (Yoma 1, 8).”

 

All these sources have a similar trend – holding law at the most public location out of recognition that justice must be seen and not just made (R v. Sussex Justices, Ex Parte McCarthy, 1KB 256 (1924)).

 

  1. The third value relevant to our matter is freedom of occupation. Freedom of occupation is one of the only basic rights which was enshrined in a specific basic law – Basic Law: Freedom of Occupation. Even before this Basic Law was enacted – on 11 Shvat 5709 – this Court ruled that any citizen may work in any vocation he sees fit to choose (see the Bejerano case). It was said of freedom of occupation that it “derives from the autonomy of private will. It expressed one’s self-definition. Through freedom of occupation one may designed his personality and his status and contribute to the social fabric. This, under the values of the State of Israel as a democratic state as well as under its values of a Jewish state. Occupation makes one unique and gives expression to God’s image within him (see Rabbi Eliezer’s Mishna (Analau edition, New York, 1934), parasha 20, on p. 366)” (HCJ 1715/97, The Israeli Investment Managers’ Guild v. The Minister of Finance, IsrSC 51(4) 367, 385, para. 15 of President Barak’s judgment (1997)). Indeed, the principle of freedom of occupation is required by the State of Israel being a Jewish and democratic state. The sources of Jewish law recognized work as a primary and constitutive component of human life. Here are some of the words of Rabbi Nathan: “How to love work? It teaches us that a person must love work rather than hate it, because as the Torah was given to us by  covenant so has the work was given to us by covenant (emphasis added – E. R.), as it was said ‘six days you shall work and you completed all your work and the seventh day rest for the sake of your God (Exodus 20, 9)” (Noscha A, chapter 11). The value of work appears also in the words of the Rambam who stated that “it is better to remove the skin of animals than to say to the people ‘I am a great scholar, I am a Cohen – you must support me.’ And thus under the orders of our sages, some of whom where great scholars and some of whom chopped wood and carried the beams and fetched water for gardens and made iron and coals and who did not ask from the public and did not receive when given.” (Rambam’s Mishna Torah, Matnot Aniyim, 10, 18 Halacha.) And see also in the Q+A of Mishpatei Uziel (Rabbi Ben-Zion Meir Chai Uziel, Israel, The 20th Century) vol. 4, sign 44, whereby one of the commandments performed through Jewish work is that the employer “finds (for the employee – E. R.) work to strengthen him that he does not need from others and does not ask, and this was called ‘and you held him.’” (Leviticus, 25, 35). However, similarly to the Israeli law (HCJ 5026/04, Design 22 v. The Ministry of Employment and Welfare, para. 6 of President Barak’s judgment (2005)), Jewish law recognizes that freedom of occupation – despite its significance – is not an absolute right. This particularly when we are concerned with unfair competition, which is prohibited as “going into the art of his colleague” (see Talmudic Encyclopedia, vol. 23 “going into the art of his colleague”). Thus, in the Q+A Igrot Moshe (Rabbi Moshe Feinstein, the United State, 20th Century), Yoreh De’ah, part 2, sign 98, describes a case of a butcher who joined a guild of butchers with the agreement that the shall not compete with them. Eventually, the butcher left the town and opened a butchery in a nearby town. It was decided that the butcher was prohibited, under his own commitment, from doing so, as the commitment outweighed the freedom of occupation under the circumstances.

 

  1. As mentioned, balancing between values is not easy task at all. For such purposes the Court requires the three tests of proportionality, which make concrete the general concept of reasonability (see Barak-Erez, vol. 2, 771.) The first test is the test of the suitable means, which examines the likelihood that the administrative decision will indeed achieve its purpose. The second test is that least restrictive means test, which considers the existence of alternatives that realize the same purpose, but are less restrictive of individual rights. Finally, the third test is the test of the proportional means, which examines the weight of the benefit of reaching the purpose against the weight of the cost of harm to individual rights. A reasonable administrative decision is one that meets all the tests describes. Failing to pass one of these tests means that a decision is not reasonable. Recall, that extreme unreasonableness may lead to judicial intervention that would void the decision.

 

  1. The proportionality principle – on its three tests – appears in Jewish law as well. Here are a few brief examples. First, the suitable means test. In the RIBASH Q+A (R. Itzhak Bar Sheshet, Spain and North Africa, 14th -15th centuries) sign 484 discusses the issue of incarceration of debtors – those who do not pay their financial debts. The RIBASH rules that such incarceration is legitimate only where the debtor hold assets and that it is likely that the incarceration would persuade him to pay his debts. On the other hand, when we are concerned with a person of no means, incarceration is ineffective and in any case should not be used (see also Rambam’s Mishna Torah, The Laws of Lender and Debtor, chapter 2, Halacha 1; Menachem Elon Human Dignity and Liberty in Enforcement (5724-1964)). Second, the application of the least restrictive means test can be seen in the rulings of the Rambam in his writing of Mishna Torah, Laws of Murderer and Protection of Life, chapter 1. The Rambam finds that where one chases after another in order to kill him – and this is the source for the “sentence of the pursuer” – any person in Israel is commanded to stop the pursuer and even kill him if need be (Halacha 6.) Rambam qualifies this, by finding that the permission to kill the pursuer exists only where there is no way to achieve the goal – rescuing the pursued – through less harmful alternatives in terms of the pursuer (Halacha 7). In his words:

“… Since the pursuer would be killed, if it is possible to save him for his limbs – such as striking him with an arrow or a rock or a sward and that his arm may be amputate or his leg may be broken or that he may be blinded this must be done, and where it is impossible to save the other but for killing the pursuer then they must kill him.”

 

Third, the proportional means test: the constituting source for this matter is mentioned in Masechet Avot, chapter 2, Mishna 1 – “and the cost of a Mitzvah must be calculated against its benefit.” We must balance conflicting considerations, when each may be correct and appropriate in itself. In the words of Rabbi Shlomo HaCohen Rabinovitz (the first Admor of Rdumsk) (Poland, the 19th century) in his essay Tiferet Shlomo “One may have a level and scales of justice in his hands must always think of the cost of a Mitzva against the benefit of it and the benefit of an offense against the cost of it. When often it seems fitting in his heart to perform a Mitzva that he may pray with greater holiness and cleanliness, in order that he may forget his offense against the laws of the Torah on the other hand. In conclusion, here are the words of Rabbi Moshe Chaim Lucato, Italy-Holland-Israel, 18th century) in his well known book Mesilat Yesharim, chapter 3.

 

“And I see a person’s need to be exact and to weigh his ways everyday as the great merchants who always navigate their businesses so that they may not go bad, and he sets times and hours for it so that it is not random, but with great regularity, as it is the father of productivity. And sages may their memory be a blessing instructed us explicitly of the need for such calculations, and this is what they said (Bavli, Baba Batra, 78): therefore the governors may say let us calculate, and those who control their nature and impulses shall say let us calculate the calculations of the world – the cost of a mitzvah against its benefit and the benefit of an offense against its cost.”

 

  1. Let us turn to applying these tests to the case before us. As noted, we must begin with the question whether the means realizes the end. In other words, does the Respondent’s decision not to permit the indexation of judgments by the Petitioner indeed protects the privacy of the litigating parties. I am afraid that the answer is not in the affirmative. The Respondent wishes to prevent the location of judgments through web search engines by using search terms, but this is not the outcome of its decision, so it seems. The Respondent’s decision limits the indexation of judgments by those granted direct access to its case law database, but it does not effectively limit its indexation by third parties who may post them to its site.

 

  1. In order to understand the issue and its significance, we must discuss two factual elements. First, the likelihood of passing on the judgments to a third party. One of the central characteristics of the information age is the speed and ease with which information passes from one person to another with the push of a button. This is true for information protected under copyrights (Niva Elkin-Koren, Copyrights and Competition – from a Market of Copies to a Regime of Policing, Din U’Dvarim 485, 541 (2006); see also Niva Elkin-Koren, The New Brokers in the Virtual ‘Market Square’, Mishpat U’Mimshal 6, 381 (2003)), let alone where we are concerned with judgments which inherently are subject to no copyright limiting their dissemination (see section 6 of the Copyright Law, 5768-2007). Let us further recall that the Petitioner is a commercial corporation who profits from disseminating judgments. That is, passing the judgments to a third party is under no doubt, but should assumed to be fact. Second, indexation by a third party: it is important to emphasize that indexation is the default and that preventing indexation is an active choice made by the owner of a website. As a result, almost any third party who may publish the judgments on its website – for instance a website of a law firm or a news site – would inherently result in their finding on web search engines. It is unnecessary to note that the privacy of a litigating party is violated as a result of the mere finding of a judgment – which includes his personal details – on a web search engine, and the identity of the website to which the search engines refers does not negate this infringement. Therefore, it is reasonable to assume that ever where the Respondent’s decision to take effect – the search of a litigating party’s name on a search engine would still lead to his judgment, were it to be published by anyone.

 

  1. Having said all this, there is still room to believe that the Respondent’s decision would prevent the indexation of some judgments, this because, one may think, not all the judgments published in the Petitioner’s website would be copied and published on websites of third parties. Let us recall that the Petitioner’s website includes most of the decisions and the judgments handed down in courts in Israel. Those judgments that are not copied are “spared” the indexation process thanks to the Respondent’s decision which prevents the Petitioner from indexing the judgments on its website. Seemingly – small consolation, but there is room for doubt here as well. Naturally, the most problematic judgments in terms of the privacy of litigating parties may be those which create the greatest interest among the general public. Hence the concern that judgments containing sensitive and personal details about litigating parties will not remain on the Petitioner’s website as a “stone unturned” (Bavli, Avoda Zarah, 8, 2.) In any event, a complete “seal” or close to it is not what we are concerned with here at all.

 

  1. We therefore learn that the Respondent’s decision seemingly does not fulfill its purpose, or sadly – does so partially and insufficiently. This simply means that this point is greatly important. Let us continue to the next test – the least restrictive means test. This test as well does not shed a positive light on the Respondent’s decision. As noted, the Respondent’s goal – which is positive in its essence, on a human and value level – is the prevention of infringement to the privacy of litigating parties, which is caused by locating their judgments on web search engines. By doing so, the Respondent draws a “line in the sand” and states that posting on the internet (for instance on the Respondent’s website) in and of itself is proportionate, but this is not the case for locating the judgments in web search engines. We addressed above the practical aspect of the distinction between the internet and web search engines and later we shall also address the aspect of the legal norm. We shall now consider the issue of alternatives.

 

  1. I myself believe, that there are several alternative means that realize the purpose in a similar manner (and perhaps even more so) without harming the Petitioner’s freedom of occupation or the principle of a public hearing. Apt for this issue the words of then Justice Orr (the Avi Itzhak case 82, para 46 of his judgment):

“Another aspect which the Court must consider when deciding whether to prohibit a publication or to temporarily suspend it, goes to the existence of other authorities granted to the Court, which may satisfy the ‘need’ to protect one’s good reputation. The principle is that the use of the means of publication prohibition must be ‘a last resort’. This is a drastic means, whose harm to the public hearing is difficult and egregious. Using this means may prevent, to a great extent, the effective publicness of hearings. Therefore, the Court may seriously consider the matter of whether alternative means that are less restrictive and which may realize the purpose of preventing unnecessary harm to the good reputation of a plaintiff, exist.”

 

Indeed, it seems the proper way to prevent publication of sensitive information in web search engines does not include the prohibition of some indexation or another, but it must simply be ensured that sensitive information is not found in a judgment, even before it is published to the general public – and this may be done in several ways. The Respondent may conduct refresher trainings to the administrative and legal staff on issues of privacy in writing judgments; it is possible publish the judgment to the litigating parties alone, several days before publishing on the internet, while providing the parties with opportunity to seek the redaction of irrelevant personal details (this is the path of American law. See Fed. R. Civ. P. 5.2(e); fed. R. Crim. P. 49.1(e); Fed. R. Bankr. P. 9037(e); see also Conley, Datta & Sharma, Cyberlaw: Sustaining Privacy and Open Justice, 71 Md. L. Rev. 772, 781-82; see and compare Australian law Rule 2.29 of the Federal Court Rules 2011, made under the Federal Court of Australia Act 1976; it is not unnecessary to mention that it is possible to find American judgments through the web engine “Google Scholar”.) In this context, I shall note that in the United States there are courts which use an algorithm that scans the judgment – before its publication – and searches for sensitive information that may be contained in it such as ID numbers (see, for example, in the State of Florida “Online Electronic Records Access Application” 27, 2014, which appears on the Florida courts’ website – www.flcourts.org.) Additionally it is possible to write judgments and pleading papers in formats that do not leave a possibility for leaking personal details that are not necessary, and this is not a pie in the sky (see Yehonatan Klinger, Protection of Privacy in Writing Judgments: The Defect is in the Design, on the blog Intellect or Insanity, https://2jk.org/praxis/?p=5387 (March 29, 2015)). And in the Vehicle Insurance Database case, I had to opportunity to say the following:

“I recall from my days as a judge in the District Court a long time ago, that I wondered why the names of parties are published in family cases. Indeed that was close to two decades ago, and there were yet to be the developed databases there currently are or the computerization, and judgments therefore were not in the public domain to the same extent. Today, when by easy typing and minimal effort it is possible to access all of case law, the potential harm to those whose health details may be exposed is greater.”

 

Indeed there are things that today are thoughts of the heart and tomorrow are reality. All the steps mentioned above – which are not mutually exclusive of each other – may reduce the infringement upon the privacy of litigating parties without harming the Petitioner’s freedom of occupation or the principle of a public hearing.

 

In conjunction to the steps mentioned, there are additional steps that may be promoted on a legislative level. Thus, it is possible to initiate a proposal that would establish that the names of litigating parties be published by initials alone, as it is done to some extent in other countries (see, for example, in France: Commission Nationale de I’informatique et des libertes (CNIL), Deliberation N. 01-057 of 29 November 2001, and in Belgium – Commission de modernisation de l’ordre judicaire, “Rapport consacre a la question de la publication des decisions judiciaries: La plume, le Pelikan et le nuage,” 30 Juin 2014.) It shall be noted that a similar proposal was indeed raised in Israel, but it did not successfully make its way through the legislative process (The Courts Bill (Amendment – Non-Mention of Names in Judgments), 5768-2007; see also Tomer Moskovitz, Protection of Privacy in Courts’ Publications – Is it Proper to Publish Names in Judgments?, Mishpatim 18 431 (1989). Let us recall here that the legislative branch is aware of the harm done to the privacy of litigating parties as a result of publishing judgments, and operates in order to balance between this harm and the principle of a public hearing. This, section 10(4)(b) to the Family Courts Law, 5755-1995 states that most family cases be adjudicated confidentially and in closed hearings, and as a result their publication (and see section 70(a) of the Law) is in the absence of parties’ names but as “Anonymous v. Anonymous” (and see on the other hand the Courts Bill (Amendment – Requiring Publication of Judgments and Decisions of Family Courts), 5771-2010; see also Rina Bogush, Ruth Halperin-Kedari and Eyal Katvan, The ‘Hidden Judgments’: The Impact of Computerized Databases on the Creation of the Legal Knowledge Body in Israeli Family Law, Iyunei Mishpat 34 603 (5771-2011)). A Similar provision, in regards to juveniles’ cases, is found in section 54(2) of the Juvenile Law (Adjudication, Penalty and Manners of Treatment) (Amendment n. 14), 5768-2008 (see also the Court’s Bill (Amendment – Prohibition of Publication of Minors’ Names in Civil Proceedings), 5769-2009). Another examples is amendment n. 77 of the Courts’ Law which states that “No one shall publish the name or identification number of a litigating party who claims recovery for bodily injuries…” From the collection of all this it appears that this is not a legislative vacuum in which the Respondent operates but in regards to an issue to which the legislature’s eye is open “from the beginning of the year and until the end of it” (Deuteronomy 11, 12) and it is possible that there may be more to come.

 

  1. And now to the third stage in the proportionality test, where narrow proportionality is examined. Does the benefit of the decision outweigh its cost? Does the protection extended to the privacy of litigating parties as a result of the Respondent’s decision is worthy of the harm to public hearings and to freedom of occupation? Is the “narrow equal the harm” (Book of Esther, 7, 4). This test is on its face redundant in light of our prior holdings whereby no source of a lawful authority was found for the decision (para. 25), it seems not to have realized its purpose (paras. 37-38) and it was selected despite the availability of less restrictive alternatives (para. 40.) However, I shall briefly address this test.

 

  1. Section 68 of the Courts Law mandates that as a rule, “a court shall adjudicate in public”, at the same time the Law includes various circumstances where publishing in regard to a judicial proceeding may be prohibited (see LCrimA 1201/12, Kti’i v. The State of Israel, para. 18 of Justice Hendel’s judgment (2014), which reasons the principle of a public hearing the while giving a narrow interpretation for exceptions.) Indeed publishing judgments, inherently, causes conflict between the right to privacy and the principle of a public hearing. The Law authorizes the judge to determine on a case by case basis according to the circumstances of the matter at hand (see my opinion in LCA 8019/06, Yediot Aharonot Ltd., v. Meirav Levin, para. 5 (Oct. 13, 2009)). As my collogue, President Naor often says – the law derives from the facts. The Respondent’s decision, on the other hand, summarily privileges the right to privacy, without giving space to the significant difference between different judgments – criminal or civil, judgments and interim decisions, different trials and others. Furthermore, the “immunity from indexation” which the Respondent’s decision provides – and as noted, there is doubt whether judgments are not to find their way to web search engines anyway (paras. 37-38 above) – is not limited to the personal details of litigating parties, but applies to the entire judgment as a whole. It is here that we should mention that the Israeli legal system belongs, in many of its principles, to the tradition of the common law, where judgments constitute a significant part of the law itself (see section 20 of Basic Law: The Judiciary). I would not be overstating to say that in the absence of access to judgments – there is no updated possibility of knowing what the law is in Israel in its entire scope. In other words, The Respondent’s decision may limit intrusive searches into the lives of litigating parties and therein lies its benefit, but this may also prevent a renter of an apartment from knowing what a lack of good faith in performing a contract means in the updated interpretation of this Court.

 

  1. We shall also note in this context that the Petitioner’s website includes the ability to search for judgments using parties’ names, and the Respondent’s decision does not prohibit this. This means that anyone could – for a handsome fee – enter the legal database such as the one appearing on the Petitioner’s site and search for their acquaintances’ names. In other words, to the extent that the Respondent’s decision may indeed “rescue” a certain number of sensitive judgments from indexation, the gains in terms of litigating parties’ privacy will be limited to the fact that in order to find them it would be necessary to enter – with a click of a button – a legal database and to pay a certain fee. I do not, of course, take this lightly, but I believe it is difficult to accept the argument whereby this state of affairs – where a judgment that is accessible and searchable on an internet legal database – provides practical obscurity, in contrast to the current state where a judgment may be found through web search engines. A similar matter was discussed in the opinion by the Israeli Institute for Democracy as to the Privacy Protection Bill (Amendment – The Right to Be Forgotten), 5775-2015. In that opinion, Dr. Schwartz-Altschuler writes that: “The Bill before us actually exacerbates the technological difficulty because it addresses only the removal of hits from search engines, without having removed the original pages containing the information. Would anyone think of removing a book from a library catalogue without first removing the book itself from the shelf first? At the end of the day, a possible outcome of the Bill would be deepening the gaps between those who know how to access information that does not appear on web search engines and those who do not and who are dependent upon them” (p. 4 of the opinion.) Therefore, it is revealed before us that the gains for privacy – if any – are small, whereas the costs to public hearing and primarily to the freedom of occupation are great. It is hard to accept that a decision which brings us to this should stand, regardless of its worthy motives.

 

In Conclusion

  1. Should my opinion be heard, the Respondent’s decision would be voided, so that the Petitioner may continue to have access to the judgments databases without committing to close its website to web search engines. There is no doubt in my mind that the Respondent operated out of positive motives and out of desire to take initiative in light of the significant changes that the internet age brings upon us. However, I am afraid that such decisions require the legislature’s say about proper regulation of the matter. The recommendations of the Justice Englard Committee, upon their submission, may be assist in this task. In the meantime there may be new technological developments that would allow the matter to be refined further. This decision does not mean that the Respondent must sit idly by and observe the changes in times – indeed, there are many steps open to the Respondent, and some were mentioned explicitly above (para. 40).

 

  1. It should be noted that this decision is not at all endorsement of any of the Petitioner’s activities. The pending class action suit against it shall be determined according to the discretion of the presiding court. Additionally, during the adjudication of the case weighty arguments have been raised in regard to actions taken by the Petitioner in order that the search for one’s name on a web search engine may lead to the website it owns, in a manner that misleads to believe that such person appears in the judgment, even if reality is completely different (see para. 12 above.) These claims were raised incidentally and have no direct connection to the petition at the center of this judgment. Naturally, no in depth discussion was held regarding them and of course no evidentiary proceedings. Without setting anything in stone, and without making factual findings that the petitioner acts in some manner or another, I will briefly note that this is a problematic practice that is not consistent with the language of the law, certainly not with its spirit or purpose. This judgments considered the violation of privacy caused to a person, a search of whose name leads to a judgment where his name is mentioned, this cannot be equated to the violation of privacy caused to a person a search of whose name on a web search engine leads to a judgment which appears misleadingly to be connected to him. The harm in the second case is egregious particularly in light of its allegedly deliberate character. Of its face, a violation of privacy caused incidentally is less severe compeered to a harm causes deliberately and by motivation of profiting a commercial company (see and compare HCJ 2605/05, The Academic Center for Law and Business, The Human Rights Department v. The Minister of Finances, para. 33 of President Beinisch’s decision (2009)). The Respondent is assumed to have explored the matter in depth, and to the extent there is truth to the claim – will work to eliminate the phenomenon, as it was said “banish evil from your midst” (Deuteronomy 17, 7.)

 

  1. I shall therefore propose to my colleagues that we issue an absolute order whereby the Respondent’s decision is voided. I shall propose under the circumstances not to make any order as to cost.

 

 

 

                                                                                    Deputy President

 

Justice E. Hayut:

 

I join the position of my colleague the Deputy President E. Rubinstein whereby the order nisi must be made absolute and the Respondent’s decision be made void. For purposes of this conclusion, it is sufficient that the Respondent’s decision from August 18, 2014 was made in the absence of explicit lawful authorization, which is required in light of the gravity of the relevant rights – freedom of occupation, the principle of public hearing, and freedom of expression on the one hand and protection of privacy on the other (as to the relationship between the scope of an authorizing provision and the strength of the relevant protected right see also HCJ 4491/13, The Academic Center for Law and Business v. The  Government of Israel (July 2, 2014)).

 

Balancing between the values and the basic rights noted is no simple task at all and my colleague the Deputy President discussed this in his illuminating opinion. This balance ought to be designed and regulated by the legislature or according to his explicit authorization. In the absence of such authorization, I join the position of my colleague that the decision subject the Petition, made by the Respondent on August 18, 2014, was made without authority.

 

                       

                                                                                                Justice

 

Justice U. Vogelman:

 

I join the outcome reached by my colleague, Deputy President E. Rubinstein, in his comprehensive opinion whereby the order nisi must be made absolute and that the Respondent’s decision in question must be voided, as well as my colleague’s main reasons as detailed above.

 

We are in the midst of an information revolution that was brought by the internet age. Information that was once accessible only to experts in their field is now accessible to anyone who seeks in, quickly and easily. The law lags behind, as it usually does, these developments which regularly require new interpretations to old legislation – in the spirit of the times and the technological advances – and the different balances that may alter established decisions (see, for instance, my opinion in AAA 3782/12, Tel Aviv-Yafo District Police Commander v. The Israeli Internet Association (March 24, 2013.)) The judiciary authority is not exception, and it too must rethink certain issues. Such is the issue before us today, which was raised in light of the Respondent’s demand that the Petitioner (and other legal databases) sign a “Document of Guarantee” whereby it commits to take all necessary steps in order to prevent the indexation of decisions and judgments given to it. The decision to require the Petitioner’s signature on this Document of Guarantee was made – according to the Respondent in its papers – in light of the scope and severity of privacy violations suffered by litigating parties, a violation which the Respondent believe may be reduced by way of preventing the indexation of judgments on  search engines. This, because the principle of a public hearing does not require, in the Respondent’s approach, making the information in the judgments accessible to the public specifically through web search engines.

 

The Respondent’s considerations are indeed worthy. But what is their outcome? Reuven, who is a lawyer, searches for Shimon’s name in a legal database – Takdin, for example – to which he has access through his occupation. The search leads him to a judgment where Shimon’s name is mentioned – as someone who was a party to a legal proceeding, served as a witness in the proceeding, or any other relevant part of it. Levi, who is not a lawyer, searches for Shimon’s name on Google. Through Takdin Light, his search leads Levi to that same judgment that Reuven found as well. The Respondent’s decision wishes to prevent Levi the ability to locate the judgment through the web search engine in order to reduce the infringement upon Shimon’s privacy. This is what it means: lawyers, jurists, and those with access to legal databases will be able to find what they are looking for; but not the general public. The ability to locate judgments is not eliminated then, rather only those with access to the various legal databases – access which requires significant funds, as well as research skills that are not necessarily acquired by the general public – may locate them. In my opinion – in light of the nature of the rights at stake and in light of the high significance and the broad consequences such a decision – which requires a delicate balance between a variety of relevant considerations which may pull in opposite directions – necessitates a legislative anchor, which is not present in our matter.

 

This on the authority level. As to the discretion level – indeed it is possible that, as my colleague put it, the Respondent’s decision would save several judgments from indexation, but this is insufficient. First, as noted, it is doubtful whether indeed the privacy of litigating parties (as well as others mentioned in different judgments, to their benefit or not) is ensured through the Respondent’s decision, given the option third parties hold to publish different judgments through their sites. Second, and more importantly, this harm can be reduced through alternatives, a few of which my colleagues presented in his opinion, including, for example, advance delivery of judgments to parties in order that they may move for redaction of private and irrelevant details; computerized scanning of judgments designed to locate sensitive information; and various legislative steps (see para. 40 of my colleague’s opinion). All of these are available without minimizing at all the duty to make sure in advance that sensitive information – certainly that which is not material to determining a dispute – is not included in a judgment even in advance of its publication to the general public, a duty imposed primarily upon judges. Noting all this, the Respondent’s decision, whose good intentions are clear, is flawed in my view on the discretion level as well, as clarified by my colleague.

 

As said, I join the decision of my colleague according to which the Respondent’s decision must be voided.

 

 

                                                                                                Justice

 

 

 

It was decided as said in the opinion of Deputy President E. Rubinstein.

 

Handed down today, 30 Heshvan 5776, (November 12, 2015)

 

 

 

Deputy President                                            Justice                                                 Justice

 

Yedidya Loewenthal, Adv. v. Prime Minister

Case/docket number: 
HCJ 2435/20
Date Decided: 
Tuesday, April 7, 2020
Decision Type: 
Original
Abstract: 

This petition was submitted by four lawyers, residents of Bnei Brak, requesting an order nisi requiring that the State explain why Government Decision declaring the Bnei Brak municipal district as a “restricted zone” for six days not be revoked.

 

The Petitioners argued that the declaration of Bnei Brak as a “restricted zone” was intended only to prevent the spread of the virus to adjacent cities, but in no way related to the prevention of its spread among the residents of Bnei Brak themselves. They further argued that the declaration mortally harms the residents’ freedom of occupation, their liberty, dignity and their freedom of movement, and described the situation as “collective punishment”. The Petitioners argued that the declaration was made “contrary to the obligatory constitutional norms”, that its provisions violate the International Covenant on Civil and Political Rights, that the provisions should have been established in primary legislation, and that the declaration did not meet the tests of proportionality. Lastly, they argued that the declaration was made without public debate, without sufficient evidentiary grounds, and in violation of the right to be heard.

 

Held (per Justice I Amit, Justice A. Baron, Justice Y. Elron concurring):

 

1.         In order to contend with the situation created by the coronavirus epidemic, the Israeli Government exercised its authority under sec. 39 of Basic Law: The Government, and promulgated emergency regulations in regard to a number of subjects intended to mitigate the danger of the spreading of the virus. On April 2, 2020, the Israeli Government decided to promulgate Emergency Regulations (Novel Coronavirus) (Restricted Zone), 5780-2020 (hereinafter: the Regulations). Under sec. 2 (a) of those Regulations:

 

If the coronavirus has significantly spread in a particular are in Israel, and the Ministerial Committee is convinced of the need for restricting entry and exit therefrom in order to prevent the spread of the illness outside the said area, it may, with the consent of the Government, declare the area a restricted zone, on the condition that during the period when the declaration is in force, there will be an appropriate supply of necessary goods and services in the area.

 

2.         In terms of authority, the promulgation of the Regulations is facially in accordance with the Governments’ authority under sec. 39 of Basic Law: The Government, subject to the various limitations as established by law and precedent.

 

3.         The declaration of Bnei Brak as a “restricted zone” followed a large number of incidents of infection in the city, and the fear of an unrestrained transmission of the virus.

 

4.         The expert epidemiological opinion of the Deputy Director of the Public Health Service in the Ministry of Health set out the criteria for establishing a restricted zone subject to additional limitations, which are: a high level of incidence relative to other areas; a significantly higher level of incidence that in the general population; high population density; and clear concentrations of respiratory ailment in the area in the report of the Israeli Center for Disease Control (hereinafter: ICDC). The position of the opinion’s author was that in weighing the data, “the city of Bnei Brak currently constitutes an exceptionally significant center of illness, which will undermine the national effort to lessen the coefficient of contagion”. It was noted that the city of Bnei Brak meets all of the criteria for establishing a restricted zone, and accordingly, severe restrictions upon movement must be imposed.

 

5.         It is settled law that when the Court reviews a decision by a governmental agency, it does not presume to stand in its shoes and make decisions for it in its area of expertise. It is not the practice of the Court to intervene in matters of the agency’s policy, and this is particularly so in regard to policy that is based upon clearly professional data and where the decision is of a clearly professional nature under the agency’s authority and expertise. This is particularly the case in regard to professional matters concerning public health. While the case does not concern a regular administrative decision, but rather a Government decision by virtue of emergency regulations, it is a clearly professional matter.

 

6.         Clearly, the declaration of Bnei Brak as a restricted zone involves a number of violations of basic rights. The purpose of the severe restrictions imposed upon the city’s residents is clear – protecting the health and lives of the city’s residents and the residents of the entire State of Israel. In accordance with the professional discretion, and the data available to the decisionmakers – the scope of illness in the city, the rate of infection, and the population density – there was no recourse but to declare the city of Bnei Brak a “restricted zone”, and thus the declaration was made for a proper purpose.

 

7.         There is a clear rational connection between the means and the purpose.

 

8.         The less harmful means test examines the matter on a metaphoric ladder: was it possible to adopt a “lower” rung on the ladder that would be less harmful to the right? In the present case, there is no denying that declaring the city of Bnai Brak as a “restricted zone” is a very high rung on the ladder. However, it is not sufficient to show that there is another means that would violate the right to a lesser degree. The requirement is that means to achieve the purpose do so in an appropriate and necessary manner. The means were adopted after less harmful means, of the type imposed on the general population, were imposed but did not yield the desired results. In view of the number of people infected and the rate of transmission, and against the background of the city’s extreme density, there were no less harmful means available that could provide the necessary response for stemming the spread of the virus outside the Bnei Brak area at this time. Thus, the second subtest was met.

 

9.         In regard to the proportionality stricto sensu test, the Court can only rely upon the professionals, who are of the opinion that there was no recourse but to impose declare a “restricted zone” in order to stem the spread of the virus.

 

10.       We face an unprecedented situation of fear of the rapid spread of the coronavirus, with all that portends in terms of morbidity, death, and the collapse of the health system. In the horizontal balancing of rights, we now place the violation of fundamental liberties and rights like freedom of movement against the right to life and physical integrity – an uncommon situation in our state. In that horizontal balance, the right to life prevails.

Voting Justices: 
Primary Author
majority opinion
Non-writer
majority opinion
Non-writer
majority opinion
Full text of the opinion: 

HCJ 2435/20

Petitioners:                              1.  Yedidya Loewenthal, Adv.

                                                2.  David Izacsohn, Adv.

                                                3.  Moshe Lipel, Adv.

                                                4.  Zvi Zaks, Adv.

 

                                                            v.

 

Respondents:                          1.  Prime Minister Benjamin Netanyahu

                                                2.  Minister of Health Yaakov Litzman

                                                3.  Minister of Defense Naftali Bennet

                                                4.  Moshe Bar Simon, Director General, Ministry of Health

                                                5.  Minister of Public Security Gilad Erdan

                                                6.  Minister of the Treasury Moshe Kahlon

                                                7.  District Commander Roni Numa

                                                8.  National Emergency Network

                                                9.  Bnei Brak Municipality

                                                10.  Avraham Rubinstein, Mayor of Bnei Brak

 

Attorney for the Petitioners:   Pro se

Attorneys for Respondents 1-8: Nahi Benor, Adv.; Tehola Roth, Adv.

Attorneys for Respondents 9-10: Yehuda Leibowitz, Adv.; Ariel Yunger, Adv.

 

 

The Supreme Court sitting as High Court of Justice

Before: Justice I. Amit, Justice A. Baron, Justice Y. Elron

 

 

Petition for order nisi and interim order

 

 

Israeli Supreme Court cases cited:

[1]       HCJ 8938/11 “All for Peace” v. Minister of Communications, (Feb. 24, 2015)

[2]       HCJ 5263/16 Nesher Israel Cement Enterprises v. Ministry of Environmental Protection, (July 23, 2018)

[3]       HCJ 5438/19 Jan Chibartkin v. Ministry of Justice of the State of Israel, (Feb. 26, 2020)

[4]       HCJ 13/80 Nun Canning Industries v. Ministry of Health, IsrSC 34(2) 693 (1980)

[5]       HCJ 4675/03 Pfizer Pharmaceuticals v. Director General of the Ministry of Health, (May 12, 2011)

[6]       HCJ 1407/18 Koffolk (1949) Ltd. v. Head of the Medical Preparations Registration Department, (Aug. 19, 2019)

[7]       HCJ 703/19 MBI Pharma v. Ministry of Health, (Aug. 26, 2019)

[8]       LAA 2199/20 Peshe Brook v. Ministry of Health, (March 24, 2020) [https://versa.cardozo.yu.edu/opinions/brook-v-ministry-health]

[9]       HCJ 2233/20 Pardes Hanna-Karkur Local Council v. Ministry of Health, (March 26, 2020) [https://versa.cardozo.yu.edu/opinions/pardes-hanna-karkur-local-council-v-ministry-health]

[10]     HCJ 10203/03 Hamifkad Haleumi v. Attorney General, IsrSC 62(4) 715 (2008) [https://versa.cardozo.yu.edu/opinions/hamifkad-haleumi-v-attorney-general]

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

 

 

Judgment

(April 7, 2020)

 

Justice I. Amit:

1.         The coronavirus epidemic leaves its mark on every area of life. Since the outbreak of the epidemic in December 2019, the world has been contending with the rapidly spreading virus, which has, to date, left a long trail of over a million sick and tens of thousands of dead. Israel has not escaped this struggle, and sadly, as of the date of this writing, over 9,000 people have been diagnosed, and dozens have died.

            From a legal standpoint, the epidemic leads us through a land not sown [Jeremiah 2:2], to legal and constitutional places and paths not imagined by our predecessors, nor even predicted by prophets of doom. Basic constitutional rights, like the right to privacy and property, freedom of occupation and freedom of movement in Israel are dumbfounded in the face of terms like closure, quarantine, encirclement, roadblocks, cellphone location tracking by the I.S.A., social distancing, etc. All of these file before us like a dystopian nightmare in a democratic state founded upon freedom of the individual. In normal times, such means would be summarily rejected as manifestly unlawful, but these are not normal times, and due to the “need of the hour” (TB Yevamoth 90b, Sanhedrin 46a), there is no alternative but to punish the public, although it did not sin and is not worthy of punishment.

2.         The present petition was submitted by four lawyers, residents of Bnei Brak, who ask that we issue an order nisi requiring that the Respondents explain why Government Decision no. 4958 of April 2, 2020, which declared the Bnei Brak municipal district as a “restricted zone” for six days (hereinafter: the Government Decision) not be revoked. The Petitioners also ask that we issue an interim order instructing the Respondents to refrain from exercising their authority under the said declaration until the petition is decided.

            Alternatively, the petition asks that we order the Respondents to provide basic food items to the city’s healthy and ailing residents, and to provide them with appropriate food, that is certified as kosher-for-Passover under rabbinical supervision acceptable to the city’s residents.

3.         The petition was brought before me last night. Due to its urgency, and with Passover soon upon us, I ordered Respondents 1-8 (hereinafter: the State) to respond to the petition by this morning at 10:00 AM (which was extended several times at their request, and the response was ultimately submitted at about 4:00 PM). In addition, I also allowed Respondents 9-10 (the Bnei Brak Municipality and the Mayor (hereinafter, collectively: the Municipality)) to submit their response.

 

Arguments of the Petitioners and the Municipality

4.         The Petitioners argue that the declaration of Bnei Brak as a “restricted zone” was intended only to prevent the spread of the virus to adjacent cities, but in no way relates to the prevention of its spread among the residents of Bnei Brak themselves. The Petitioners describe the severe consequences of the declaration, among them, they argue that the city’s residents have difficulty obtaining food, medicine, and medical treatment; that it mortally violates the residents’ freedom of occupation, their liberty, dignity and their freedom of movement. The harm is particularly severe given that we are concerned with a socially and economically deprived population that is characterized by large families and a low standard of living, given that the families have been imprisoned in their homes since several days prior to the imposition of the quarantine. The Petitioners describe the situation that has been created as “collective punishment”, and take this opportunity to complain of incitement against the ultra-Orthodox community in general, and the residents of Bnei Brak, in particular, and of the humiliation suffered by the city’s residents of ultra-Orthodox appearance, when they go out to purchase food and drugs.

            In addition, the Petitioners argue that the declaration was made “contrary to the obligatory constitutional norms”, that its provisions violate the International Covenant on Civil and Political Rights, that the provisions should have been established in primary legislation, and that the declaration does not meet the tests of proportionality. Lastly, they argue that the declaration was made without public debate, without sufficient evidentiary grounds, and in violation of the right to be heard. According to the Petitioners, they addressed a demand to revoke the declaration to the Respondents, but received no reply (I would note that contrary to what is stated in the petition, the Petitioners’ letter to the Respondents was not appended to the petition).

5.         The Municipality admitted, both at the beginning and at the end of its response, that all involved are working around the clock in the holy effort of aiding the residents of Bnei Brak.

            On the merits, the Municipality supports the petition, and joined its arguments. In its response, it argued that “the blood of the residents of Bnei Brak is no less red than that of the residents of Israel’s other cities,” and that from the outset, the Municipality expressed its opinion to the authorities that “it is wrong to adopt the historically unparalleled, draconian measures taken against the city of Bnei Brak alone”.

            The Municipality complained of the manner of making the decision that is the subject of the petition. It argues that before declaring Bnei Brak a restricted zone, the authorities should have heard its opinion, as it is better acquainted with the lifestyle of the city’s residents than any regulator, and is deeply involved in the city’s ongoing affairs. It claims that decisions affecting the fate of thousands of large families and thousands of elderly should not have been made without first obtaining complete, comprehensive information from the Municipality’s social services department, and without familiarity with the unique characteristics of the city’s population. For example, the Municipality (and the Petitioners) pointed out that a large portion of the city’s residents rely on “kosher” phones that cannot receive SMS messages intended to provide information to the city’s residents. Against this background, the Municipality asks that even if the Petition be denied, the Court order the end of the quarantine no later than the originally established date, and that no extension be made without prior, professional, interdepartmental consultation, and primarily, after consultation with the Municipality.

6.         The Municipality listed the following failures, one by one: The 104 call center of the National Emergency Network did not undergo basic training in regard to the special character and needs of the residents, and was not available for hours; there was no food delivery, and as a result, residents thronged the food distribution centers; there was a lack of even a basic response for support and solutions for the many sick people throughout the city; large families struggled to obtain food, drugs, and medical services. Doctors and other essential workers and service providers cannot enter the city, and those who are willing to do so just give up in the face of demands for presenting permits that no one knows how to obtain, if they can be obtained at all; people sent into quarantine in hotels complain of being ignored and abandoned; and the lack of supply of goods and food items, hygiene and other basic needs prevents the residents from properly preparing for Passover. The Municipality further complains that there was no consideration of the possibility of forbidding soldiers and security forces from moving about the city with their weapons, nor consideration of the fact that the very presence of thousands of soldiers, police and border patrol officers had a traumatic effect upon many of the city’s residents.

7.         On the legal plane, it is argued that the means adopted are disproportionate, and that they, therefore, do not meet the conditions set out at the end of sec. 12 of Basic Law: Human Dignity and Liberty, which establishes:

This Basic Law cannot be varied, suspended or made subject to conditions by emergency regulations; notwithstanding, when a state of emergency exists, by virtue of a declaration under section 9 of the Law and Administration Ordinance, 5708-1948, emergency regulations may be enacted by virtue of said section to deny or restrict rights under this Basic Law, provided the denial or restriction shall be for a proper purpose and for a period and extent no greater than is required.

According to the Municipality, the trampling of the public’s basic rights to freedom of movement and liberty “for the medical needs of the handful of sick persons in Bnei Brak” is disproportionate. At the very least, no consideration was given to the possibility of isolating certain sick persons, given that their number is only about 900, some of whom are members of the same family, or to impose a quarantine only upon certain areas of the city rather than on the entire city. According to the Municipality, the harm caused by the quarantine outweighs its benefits, inasmuch as the overwhelming majority of the city’s residents are completely healthy, but they, too, have been imprisoned in the city due to the quarantine, and people suffering from chronic ailments who require medicine and treatment have also been harmed. It is further argued that the purpose of the quarantine is to prevent the transmission of the virus outside the city, and thus the fear that the State seeks to use the city’s residents as “guinea pigs” in order to test the herd effect, which is an improper purpose, and moreover, its effectiveness has not been proven.

8.         Like the Petitioners, the Municipality also emphasizes in its response that in addition to the harm caused and that will be caused to each and every one of the city’s residents, “no less important is the public harm and the stigma attaching to all the residents of Bnei Brak like a mark of Cain”. It is argued that the quarantine has resulted in wild incitement against the Bnei Brak public, and that the residents may be stigmatized as lawbreakers and “spreaders of disease”. Thus, the Municipality requests and demands that a message and declaration be sent out that “the fate of the residents of Bnei Brak is no different than that of all the citizens of the State of Israel”.

 

The normative framework

9.         In order to contend with the difficult situation created by the coronavirus epidemic, the Israeli Government exercised its authority under sec. 39 of Basic Law: The Government, and promulgated emergency regulations in regard to a number of subjects, which were intended to mitigate the danger of the spreading of the virus (see, inter alia, Emergency Regulations (Novel Coronavirus – Restriction of Activity), 5780-2020 (March 21, 2020); Emergency Regulations (Novel Coronavirus) (Isolation in a State Assigned Place of Isolation), 5780-2020 (April 2, 2020)).

10.       On April 2, 2020, the Israeli Government decided to promulgate Emergency Regulations (Novel Coronavirus) (Restricted Zone), 5780-2020 (hereinafter: the Regulations). This is the text of reg. 2(a) of the Regulations:

                        Declaration of a Restricted Zone

                        2(a)      If the coronavirus has significantly spread in a particular are in Israel, and the Ministerial Committee is convinced of the need for restricting entry and exit therefrom in order to prevent the spread of the illness outside the said area, it may, with the consent of the Government, declare the area a restricted zone, on the condition that during the period when the declaration is on force, there will be appropriate supply of necessary goods and services in the area.

            Pursuant to that, reg. 3 details a list of restrictions that would apply to a “restricted zone”, which treat of prohibiting exiting and entering the restricted zone, and a limited number of exceptions, among them: exiting for medical care, legal proceedings, the funeral of a first-degree relative, and entry by medical teams, social workers and the press, and entry for the purpose of supplying necessary goods and services.

            In addition, reg. 4 details the authorities granted to the police for the purpose of enforcing the provisions of reg. 3. It should be noted that under reg. 7, the Regulations will remain in force for a period of 30 days from the day of publication.

            [Parenthetically: Reg. 3 of the Regulations was amended in Emergency Regulations (Novel Coronavirus) (Restricted Zone) (Amendment), 5780-2020. The amendment establishes that where the Ministerial Committee declared a particular area as a restricted zone, it may also include in the declaration that “all or part of the restrictions listed in reg. 3 will apply, and it may establish exceptions to the application of the said restrictions, in accordance with the circumstances of the restricted zone” (Official Gazette 8460 of April 6, 2020, p. 1036)].

11.       In terms of authority, the promulgation of the Regulations is facially in accordance with the Governments’ authority under sec. 39 of Basic Law: The Government, subject to the various limitations as established by law and precedent. I see no need to address those limitations in the context of this petition, inasmuch as the Attorney General expressed his opinion on the matter in his letter to the Prime Minister of April 6, 2020, and a separate petition in this regard is currently pending before this Court (HCJ 2399/20 Adalah v. Prime Minister).

12.       There was good reason for our lengthy presentation of the arguments of the Petitioners and the Municipality. This is the first time in the history of the State of Israel that a quarantine was imposed upon a city within the Green Line.[1] Naturally, this unprecedented decision raises a variety of problems for implementation in the field. This petition, although it misses the mark here and there in terms of exaggeration and analogies to dark periods of history that were better left unmentioned, expresses the authentic distress of the residents of the city of Bnei Brak, which was placed under quarantine, such that none may leave or enter its gates. It is a bitter irony that Passover has changed from the festival of freedom to a holiday of families sheltering together, imprisoned between the four walls of their homes.  Indeed, the quarantine weights heavily upon the residents of Bnei Brak, and their cries have risen to Jerusalem and the Supreme Court.

13.       With all due understanding of the distress expressed in the petition and the Municipality’s response, in view of what is stated in the State’s response, the petition must be denied.

            On April 4, 2020, the day the Regulations were promulgated, the Government made the decision to declare the Bnei Brak municipal area “restricted zone” for a period of six days. From that perspective, the petition was submitted late – four days after the declaration and two days before the end of the original date set for the end of the period.  I would note that in their response, the Respondents have informed us that the present intention is to extend the period until April 10, 2020.

14.       In practice, due to the pace of events, with one decision following on the heels of another, the petition became partly “moot” within hours of its submission, due to the intention to impose a general closure upon the entire state, such that the residents of Bnei Brak will not stand alone in the campaign. However, the Municipality argues that precisely the fact that a quarantine is being imposed at this very hour upon other places throughout the country emphasizes the discrimination against the residents of Bnei Brak, inasmuch as the imposition of the quarantine to other places is more balanced and reasonable, and is more considerate of the needs of the residents.

15.       The declaration of Bnei Brak as a “restricted zone” followed a large number of incidents of infection in the city, and the fear of the unrestrained transmission of the virus. As noted, the petition before us challenges the legality of that declaration. According to the Municipality, two preconditions for declaring the city a restricted zone were not met: the quarantine is not necessarily required to stop the spread of the virus, and there is an absence of “appropriate supply of necessary goods and services in the area”. In the Municipality’s view, a distinction should be drawn between sheltering-in-place and quarantine, and the decision was made without data and without information.

16.       However, as we learn from the State’s response, the decision to impose a quarantine was not taken lightly, but was made only after consultation with the relevant professional bodies. Thus, the State pointed out that the decision was made on the basis of an expert epidemiological opinion of the Deputy Director of the Public Health Service in the Ministry of Health, Dr. Udi Kleiner, which was also signed on April 4, 2020.

            In that opinion, appended to the State’s response (Appendix R/3), Dr. Kleiner addressed the illness caused by the coronavirus, its spread in the world and in Israel, and the steps that had been taken in Israel in order to contend with the virus. It was pointed out that Israel has adopted a general policy of “social distancing” to lessen the outbreak of the virus, and while this policy has proven itself in terms of slowing the pace of the rise in cases over the last few days, there are still areas and towns in which there are indications of significant concentrations of illness and high rates of transmission. It was also noted that these concentrations are of both local and national significance, inasmuch as they may become the source of morbidity. Dr. Kleiner emphasized that imposing strict limits upon movement in a limited area in which there is significant morbidity and a high rate of transmission, inasmuch as this means “is more effective in preventing the spread of the epidemic than increasing the restrictions upon the entire state. This will make it possible to lower the rate of transmission in the restricted zone […] and in other areas, due to a reduction in the export of infection from the restricted zone to other areas”.

            Further on, the opinion sets out the criteria for establishing a restricted zone subject to additional limitations, which are: a high level of incidence relative to other areas; a significantly higher level of incidence that in the general population; high population density; and clear concentrations of respiratory ailment in the area in the report of the Israeli Center for Disease Control (hereinafter: ICDC). It was explained that meeting most or all of the criteria adds support for deciding to declare an area as a restricted zone.

            The opinion listed the following data in regard to the city of Bnei Brak:

            (-)        The number of sick in the city stands at 966 to date (the 2nd highest rate of incidence and number of patients in the Israel), 418 of them were added over the last three days (about a fifth of the number of people testing positive over those days);

            (-)        The rate of incidence stands at 492.1 per 100,000 residents (no. 4 in Israel among towns with a population exceeding 5,000 persons), as opposed to a rate of 76.1 in Israel (according to a rate of incidence of 6,852 among 9 million residents);

            (-)        A population density of 26,368.4 persons per square kilometer (the most densely populated city in Israel by a significant margin among towns with a population exceeding 5000);

            (-)        A clear concentration of respiratory illness according to the ICDC analysis, and over time.

            We should note that the opinion was accompanied by a report of concentrations of the ICDC, and a slide detailing the ten leading towns in terms of illness and number of patients in Israel as of April 1, 2020.

            The position of the opinion’s author was that in weighing the data, “the city of Bnei Brak currently constitutes an exceptionally significant center of illness, which will undermine the national effort to lessen the coefficient of contagion”. It was noted that the city of Bnei Brak meets all of the criteria for establishing a restricted zone, and accordingly, severe restrictions upon movement must be imposed.

            As stated, on the basis of the opinion, the Government made a unanimous decision to declare the municipal area of Bnai Brak a restricted zone for a period of six days. It is that decision that is challenged by the petition.

17.       It is settled law that when the Court reviews a decision by a governmental agency, it does not presume to stand in its shoes and make decisions for it in its area of expertise. It is not the practice of this Court to intervene in matters of the agency’s policy, and this is particularly so in regard to policy that is based upon clearly professional data, and where the decision is of a clearly professional nature under the agency’s authority and expertise. That is the case in general (see, among the many cases: HCJ 8938/11 “All for Peace” v. Minister of Communications [1], para. 18; HCJ 5263/16 Nesher Israel Cement Enterprises v. Ministry of Environmental Protection [2], para. 11; HCJ 5438/19 Jan Chibartkin v. Ministry of Justice [3], para. 16), and it is particularly the case in regard to professional matters concerning public health (HCJ 13/80 Nun Canning Industries v. Ministry of Health [4], 695-696; HCJ 4675/03 Pfizer Pharmaceuticals v. Director General of the Ministry of Health [5], para. 39; HCJ 1407/18 Koffolk (1949) Ltd. v. Head of the Medical Preparations Registration Department [6]; HCJ 703/19 MBI Pharma v. Ministry of Health [7], para. 19; and see the recent cases concerning the coronavirus epidemic:  LAA 2199/20 Peshe Brook v. Ministry of Health [8], para. 6; HCJ 2233/20 Pardes Hanna-Karkur Local Council v. Ministry of Health [9]).

            While we are not concerned with a regular administrative decision, but rather with a Government Decision by virtue of emergency regulations, we are concerned with a clearly professional matter. The Ministry of Health outlined a policy of reducing contact, to the extent possible, among the population, together with isolation of validated patients. In that framework, as fully explained in the response, various restrictions were imposed that were intended to prevent congregating, which is a fertile ground for infection, restricting movement in the public domain, closing educational, cultural and leisure institutions, and places of work and commerce. According to the data and the status report, this policy has borne fruit in the form of a slowing of the pace of the increase in patients. The general status report for the state shows areas and towns in which the concentration of incidence is significant and the rate of transmission high. This has both local and national impact. Thus, the position of the professional organs is that severe restrictions on movement be imposed on these areas, in the form of declaring the area a “restricted zone”, with the resultant extreme limitations on going out in public areas and restrictions upon entering and exiting the area. This was done to reduce the “export” of infection to other areas, and to prevent the entry of infected persons who might further increase the number of those infected. As stated, as of the present time, the professional bodies have established a number of parameters for examining whether and when to declare a particular area a “restricted zone”: the number of infected persons in the area as compared to other areas; the rate of morbidity in the area relative to the general rate in the population; population density; and locating a clear concentration of respiratory illness in the area.

            On the basis of these parameters, and as stated in the aforementioned expert opinion, the data showed that Bnei Brak is a significantly exceptional center of illness – the number of patients, the morbidity, and the population density required adopting the unprecedented step of declaring the city a “restricted zone”.

18.       The stage theory  that applies constitutional review is well known: a violation; the limitations clause with its four stages (by law or by virtue of a law,  befitting the values of the State of Israel, for a proper purpose, and proportionality in accordance with the three subtests), and the remedy (Aharon Barak, The Constitutional Right and its Violation: The Three-Stage Theory, 19 Mishpat Umemshal 119 (2018) (Hebrew). I will now examine the challenged decision in accordance with the three-stage theory that applies to constitutional review, as briefly as possible, and without digressing into dissertations. The time for that will come after the plague has passed and the dust has settled, and we will leave it to the academic scholars to expand.

19.       Clearly, the declaration of Bnei Brak as a restricted zone involves a number of violations of basic rights, like freedom of movement. The purpose of the severe restrictions imposed upon the city’s residents is clear – protecting the health and lives of the city’s residents and the residents of the entire State of Israel. In accordance with the professional discretion, and the data available to the decisionmakers – the scope of illness in the city, the rate of infection, and the population density – there was no recourse but to declare the city of Bnei Brak a “restricted zone”, and thus the declaration was made for a proper purpose.

20.       The three subtests are well known: the rational connection test, the necessity test (the less harmful means), and the proportionality test stricto sensu.

            There is a clear rational connection between the means and the purpose, and I see no need to elaborate. The second subtest – the less harmful means – examines the matter on a metaphoric ladder: was it possible to adopt a “lower” rung on the ladder that would be less harmful to the right? In the present case, there is no denying that the means of quarantine, or more precisely, declaring the city of Bnai Brak as a “restricted zone”, is a very high rung on the ladder. However, it is not sufficient to show that there are other means that would violate the right to a lesser degree. The requirement is that the means to achieve the purpose do so in an appropriate and necessary manner (see, among many: HCJ 10203/03 Hamifkad Haleumi v. Attorney General [10], para. 51 per Justice Naor). Weighing the less harmful means where there are several alternatives is contingent upon whether the means realize the law’s purpose equally (HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [11], 387).

            The State proceeded up the ladder in adopting the means employed. The declaration did not appear as a bolt from the blue and as the first step adopted. It was adopted after less harmful means, of the type imposed on the general population, were imposed but did not yield the desired results. In view of the number of people infected and the rate of transmission, and against the background of the city’s extreme density, there were no the less harmful means available that could provide the necessary response for stemming the spread of the virus outside the Bnei Brak area at this time. Thus, the second subtest was met.

            In regard to the proportionality stricto sensu test – a cost-and-benefit test – we can only rely upon the professionals, who are of the opinion that there was no recourse but to impose the restrictions of a “restricted zone” in order to stem the spread of the virus. The cost, which is certainly high from the perspective of the city’s residents, “is worthy of the king’s trouble” [Esther 7:4] when it is preserving the health and lives of the residents of city and the entire State of Israel.

21.       The quarantine is not hermetic, as we see from the exceptions established in the regulations themselves, and in light of the details provided in the State’s response, inter alia: the National Emergency Network was authorized to permit individual requests in areas not listed in the Regulations; a mechanism was established for addressing exceptional cases; the SMS response of the 104 call center can be received by “kosher” phones; and in addition, the development of a liaison system through the police is currently underway.

22.       We have noted the State’s undertaking that the Homefront Command is acting and will continue to act to assist the city in regard to necessary goods and services. We were informed that, to date, 13,800 meals, including food packages for individuals and families, have been distributed; informational material appropriate to the city’s unique population was distributed; and special assistance was provided to at-risk populations, with emphasis on food and medicine. The State is working on the removal of validated and isolated patients from the city to dedicated apartment hotels that have been specially prepared for that purpose, in order to prevent circles of infection around the patients. The hotels were prepared and adapted with a mind toward the special needs of the ultra-Orthodox population in general, and in particularly in view of Passover.

            We further note that there are ongoing evaluations of the situation in accordance with updated data, and where there is no further justification for the restrictions, or where it is possible to suffice with less restrictive means, the restrictions will be eased or removed.

23.       We face an unprecedented situation of fear of the rapid spread of the coronavirus in large numbers, with all that portends in terms of morbidity, death, and the collapse of the health system. In the horizontal balancing of rights, we now place the violation of fundamental liberties and rights like freedom of movement against the right to life and physical integrity – an uncommon situation in our state. In that horizontal balance, the right to life prevails.

 

Before concluding

24.       While we write these lines, the Petitioners have filed a request for an interim order and for an expedited hearing of the petition. This is brought in response to the State’s announcing its intention to extend the declaration for two additional days, until April 10, 2020, and that the Government will hold a teleconference to approve the extension.

            That decision has not yet been made, but in any case, in view of the above, we find no cause for granting an interim order. It would not be superfluous to point out that, according to what has been reported by the media, the extension of the various restrictions until April 10, 2020 is intended to apply to all residents of the Israel.

 

Conclusion

25.       We see no grounds for intervening in the Government’s decision. Even if we can understand the painful sense of humiliation expressed between the lines of the petition – the humiliation of the residents of Bnei Brak – we need only point to the State’s response, which completely rejected the claim of discrimination against the residents of Bnei Brak for their social and religious affiliations. We act under the presumption that, in this matter, the Government made its decision on the basis of the recommendations of the professional organs, and solely for relevant reasons.

            Although we have denied the petition, we find it proper to observe that the Government’s response provided no real answer to the Municipality’s claim that the decision was made without conferring with it. This may be because the Municipality’s response was submitted shortly before the State submitted its response, and thus it did not have adequate time to respond in that regard. In any case, without addressing the factual veracity of the claim, if this was not done, it would seem that there is merit to the Municipality’s complaint, and the State must take note of this, unless there are material reasons for not doing so.

26.       This is a time of distress for all Israel, as is reflected in this petition. Let us hope that the coming festivals of Passover, Easter, Ramadan and the Prophet Jethro (Nabi Shu’eib) will mark a turning point.

            The petition is denied without an order for costs.

 

Justice A. Baron:

            I concur.

Justice Y. Elron:

            I concur.

Decided as stated in the opinion of Justice I. Amit.

Given this day, 13 Nissan 5780 (April 7, 2020).

 

 

[1] Editor’s Note: The city of Nazareth was placed under a thirty-day quarantine in Nov. 1948, due to an outbreak of smallpox (see: Mustafa Abbasi, A City in Distress: Nazareth under Military Rule 1948-1949, in 22 Iyunim Bitkumat Israel - Studies in Zionism, the Yishuv and the State of Israel 399 (Ben Gurion Research Institute, 2012) (thanks to Advocate Dan Yakir, Chief Legal Counsel of the Association for Civil Rights in Israel, for bringing this to our attention).

 

General Association of Merchants and Self-Employed Persons v. Minister of Interior

Case/docket number: 
FH HCJ 3660/17
Date Decided: 
Thursday, October 26, 2017
Decision Type: 
Original
Abstract: 

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

 

Further hearing in the verdict given in HCJ 6322/14 in which a variety of claims were raised regarding two amendments to the By-Law of Tel Aviv-Jaffa (Opening and Closing Shops), 5740-1980 (hereinafter: the Amendments), addressing the opening of businesses on the Sabbath in Tel Aviv-Jaffa. The petitioners argued in favor of the constitutionality, reasonableness and proportionality of permitting businesses to open on the Sabbath. On the other hand, Respondent 4 (hereinafter: the Municipality) petitioned against the decision of the Minister of Interior to delay the entering into force of Amendment No. 2 to the by-law, which concerned opening of grocery stores on the Sabbath. In the verdict that is the subject of the further hearing, the court accepted the Municipality’s petition and rejected the petitioners’ petition. It was held that the decision to disqualify Amendment No. 2 was invalid, and that permitting businesses to open on the Sabbath via the amendments was not per se an excess of authority or discretion. The hearing focused on the question of the validity of Amendment No. 2, and the question of whether the amendments meet the standards of administrative law.

 

The High Court of Justice (decision by President Naor, joined by Justices Hayut, Danziger, Amit and Barak-Erez, against the dissenting opinion of Justices Hendel and Sohlberg), rejected the petition for a further hearing and held that:

 

Regarding the validity of Amendment No. 2, first it was decided that the Minister of Interior’s position not to approve the amendments does not affect the validity of the amendment. It was held that the current procedure is not appropriate for examining the lawfulness and reasonableness of the Minister of Interior’s position, which was not at all submitted to the panel in the proceeding that is the subject of the further hearing. In addition, the Minister of Interior’s position regarding postponing amendment No. 2 was given very late. In light of these facts, the petition is rejected. However, because it is appropriate that the issue of the Sabbath be considered and clarified when all the positions are before the court, the court reviewed the merits of the Minister of Interior’s position that Amendment No. 2 should be completely disqualified. It was held that in exercising the authority granted him by Section 258 of the Municipalities Ordinance, the Minister of Interior should accord significant weight to local autonomy, and that his position fails to do so. It was noted that the infringement on the municipality’s autonomy is particularly problematic, because local authorities in Israel are explicitly authorized to enact, in their by-laws, provisions regarding the opening of businesses in their jurisdictions on the Sabbath, as stated in the Law Amending the Municipalities Ordinance (No. 40), 5751-1990 (hereinafter: the Authorizing Law).  It was noted that one of the purposes at the foundation of the Authorizing Law is that these issues will be regulated specifically at the municipal, local level, and the opposite should not be done. The authority to make the values-based determination within the framework of the by-laws belongs to the municipality, and not to the Minister of Interior. The Minister of Interior is not supposed to evaluate if the determination is optimal in his opinion, but rather whether it is within the zone of reasonableness. Leaving the decision in the hands of the municipality is intended to realize the principle of municipal autonomy and to give substantial weight to local considerations. The Minister of Interior’s decision is intended to oversee the lawfulness of the municipality’s decision, but not to replace its discretion with his own. Also, the Minister of Interior’s position contradicts an additional central purpose at the foundation of the Authorizing Law, which is about balancing. In light of that purpose, a sweeping position, devoid of balance reflecting the character of the city, the uniqueness of its different areas and the distance between them – is unreasonable. In light of all of the above, even if the Minister of Interior’s position had been submitted on time and were evaluated on its merits, there would be no deviation from what was decided regarding Amendment No. 2 in the verdict that is the subject of the further hearing. Therefore, Amendment No. 2 remains valid.

 

On the question of whether the amendments meet the standards of administrative law, regarding authority, the Authorizing Law authorizes local authorities in Israel to enact provisions in their by-laws regarding the opening of businesses in their jurisdiction on the Sabbath; there is no contradiction between the amendments and the Hours of Work and Rest Law. That law does not create a sweeping prohibition on opening businesses on the Sabbath. In any event, the amendments were done through the Authorizing Law, which authorizes the municipality to permit the opening of businesses on the day of rest. Even if there were a contradiction, it would be a contradiction between the Authorizing Law and the Hours of Work and Rest Law, which are norms belonging to the same rank in the legal hierarchy. The Authorizing Law prevails, because it is a law enacted subsequent to the enactment of Hours of Work and Rest Law, and in any event, because it is a specific law that, in a focused way, grants powers to local authorities in Israel, in contrast to the generality of the Hours of Work and Rest Law. In light of all of the above, the municipality did not exceed its authority when it enacted the amendments.

 

Regarding the issue of discretion, the amendments are within the zone of discretion that the Authorizing Law grants the municipality. Although the amendments do, beyond a minimal level, infringe on the rights of merchants and others, which stem from opening commercial businesses and places of leisure on the Sabbath, on the other hand, the amendments protect other rights, including freedom of association and freedom of conscience. The heart of the evaluation is the balance between competing rights. The balance does not privilege one viewpoint over the other. It does not detract from the status and importance of the Sabbath as a national asset of the Jewish people and one of the values of the State of Israel as a Jewish and democratic state. However, the meaning of the balance is that, together with protecting the unique character of the Sabbath, one must allow each individual to shape his Sabbath as he chooses. The legislator tasked the local authority with the job of conducting this balance, which should reflect the unique character of each city, the character of communal life within it and the practical solutions regarding its circumstances. The amendments were enacted with the goal of reflecting the unique balance appropriate for the city of Tel Aviv-Jaffa, taking into consideration the status of the Sabbath, the composition of the population of every neighborhood, its way of life and the character of the city. Amendment No. 1 permitted opening businesses in a small number of commercial sites that are disconnected from residential areas. Amendment No. 2 permitted opening a limited number of grocery stores in specific geographic areas, subject to restrictions. It means opening a small number of businesses that constitute a tiny fraction of the number of businesses operating in the city on weekdays, a factor weighing in favor of proportionality. The balance that was reached allows for the preservation of the unique character of the Sabbath and does not significantly change the face of the city, given the existing normative situation. In summary, the amendments are within the zone of proportionality granted to the municipality, and there was no place to intervene in them.

Voting Justices: 
Primary Author
majority opinion
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concurrence
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concurrence
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dissent
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dissent
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concurrence
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Full text of the opinion: 

High Court of Justice

FH HCJ 3660/17

Before:                                                 Honorable President M. Naor

                                                                Honorable Justice E. Hayut

                                                                Honorable Justice Y. Danziger    

                                                                Honorable Justice N. Hendel

                                                                Honorable Justice N. Sohlberg

                                                                Honorable Justice D. Barak-Erez

 

The Petitioners:                                1. General Association of Merchants and Self-Employed Persons

                                                                2. Noam Knaani

                                                                3. Avraham Levi

                                                                4. Morris Bremer

                                                                5. Yaakov Bremer

                                                                6. Adi Wizaum

                                                                7. Motti Maoz

                                                                8. David Chaimov

                                                                9. Eliyahu Miller

                                                                10. Isaac Alkoser

                                                                11. Pinhas Tsalik

 

The Respondents:                           1. Minister of Interior

                                                                2. Minister of Economy

                                                                3. Ministry of Economy

                                                                4. Tel Aviv-Jaffa Municipality

                                                                5. Mayor of Tel Aviv-Jaffa

                                                                6.  Otzar Marine Industries Ltd.

                                                                7. The Tel Aviv-Jaffa Economic Development Authority Ltd.

                                                                8. Israel Land Authority

                                                                9. Gindi Holdings Development 2009 Ltd.

                                                                10. Yaakov Bruchim (formal)

 

Further hearing of the High Court of Justice’s verdict in HCJ 6322/14, HCJ 996/15, HCJ 2998/15, and HCJ 4558/15 (unpublished) rendered on April 19, 2017 by the Honorable President M. Naor and the Honorable Justices A. Hayut and D. Barak-Erez

Date of Hearing: 15 Av 5777 (August 8, 2017)

Representing Petitioner 1:                            Adv. David Shuv; Adv. Uriel Boni

Representing Petitioner 2-11:                     Adv. Ivri Feingold

Representing Respondents 1-3 and 8:      Adv. Dana Briskman; Adv. Ron Rosenberg

Representing Respondents 4-5 and 7:      Adv. Yisrael Leshem; Adv. Yochi Kadir-Paz; Adv. Idan Liron

Representing Respondent 6:                       Adv. Yehezkel Reinhertz; Adv. Avinoam Peretz

Representing Respondent 9:                       Adv. Yehoshua Horesh; Adv. Lior Mimon; Adv. Hagar Pines

 

Verdict

President M. Naor:

At the heart of this further hearing before us is the character of the Sabbath in the city of Tel Aviv-Jaffa. The background for the proceeding is two amendments to the By-Law of Tel Aviv-Jaffa (Opening and Closing Shops), 5740-1980 (hereinafter together: the Amendments), which address opening businesses on the Sabbath in the city of Tel Aviv-Jaffa.

Background of the Further Hearing

  1. The By-Law of Tel Aviv-Jaffa (Opening and Closing Shops), 5740-1980 (hereinafter: the By-Law) provides that businesses should not be opened on the Sabbath and Jewish holidays, with limited exceptions (see section 2 of the By-Law). The enforcement of the By-Law was the focus of a judgment by this court in App Adm Pet 2469/12 Bremer  v. Tel Aviv-Jaffa Municipality (unpublished) (June 25, 2013) (hereinafter: the Bremer  case). In that case, the court accepted the position of the appellants there (who are also the petitioners before us) that the enforcement policy then in place -  which included imposing fines but refraining from issuing closure orders – is not effective. The court therefore remanded the issue to the municipality to exercise its discretion and make a decision about how to exercise the powers granted to it to enforce the By-Law. It was also held that if the municipality wants to change its policy regarding opening businesses on the Sabbath, it cannot do so by way of non-enforcement but rather should amend the By-Law as required by law.
  1. [sic] As a result of the decision in the Bremer case, in 2014 the city council approved an amendment to the By-Law (By-Law of Tel Aviv-Jaffa (Opening and Closing Shops) (Amendment No. 1), 5774-2014 (hereinafter: Amendment No. 1). Amendment No. 1 basically permitted the opening of businesses on the Sabbath in three commercial sites, the opening of convenience stores in gas stations on the Sabbath and the opening of grocery stores. Then-Minister of Interior Gidon Saar used his authority under Section 258 of the Municipalities Ordinance [New Version] (hereinafter: the Ordinance) to approve most of the provisions of Amendment No. 1, but he invalidated the provision regarding opening grocery stores. Amendment No. 1, as approved, was published in Reshumot [official legislative reporter-trans.].
  2. Thereafter, the city council approved an additional amendment to the By-Law (By-Law of Tel Aviv-Jaffa (Opening and Closing Shops) (Amendment No. 2), 5774-2014 (hereinafter: Amendment No. 2)). Amendment No. 2 addressed the opening of grocery stores on the Sabbath according to area and subject to various restrictions, including receiving a permit. Amendment No. 2 was submitted to Interior Minister Saar on August 13, 2014.  On October 7, 2014, using his authority under Section 258 of the Ordinance, the Minister of Interior ordered the publication of Amendment No. 2 to be delayed. About a month later, on November 3, 2014, Interior Minister Saar resigned from his position. From the time the decision was made to delay, and for two and a half years, no decision was made on the merits of Amendment No. 2. That was despite an agreement reached during legal proceedings and various developments, about which I will expand later.
  3. These amendments were at the foundation of four petitions that were disposed of in the verdict that is the subject of the further hearing (HC 6322/14 General Association of Merchants and Self-Employed Persons v. Minister of Interior [unpublished] (April 19, 2017). In those petitions a number of claims were raised regarding the amendments. In brief, Petitioner 1 and Petitioners 2-11 (hereinafter: the merchants) and Respondent 9 (hereinafter: Gindi) raised a variety of claims about the lawfulness, reasonableness and proportionality of permitting businesses to open on the Sabbath. In opposition, Respondent 4 (hereinafter: the Municipality) petitioned against the Minister of Interior’s decision to delay the entering-into-force of Amendment No. 2. In the verdict that is the subject of the further hearing it was unanimously decided to accept the Municipality’s petition and to reject the petitions of the merchants and Gindi. Regarding the delay of Amendment No. 2, it was held that, in light of the long period of time that had passed since the decision to delay, the failure to make a decision on the merits should be seen as an unexplained decision to invalidate Amendment No. 2. The absence of an explanation imposed a burden on the state to prove that the decision to invalidate Amendment No. 2 was made lawfully, but the state did not provide a reason that it believed justified the invalidation. Given that state of affairs, the court invalidated the decision to invalidate Amendment No. 2. It was also held that using the amendments to permit businesses to open on the Sabbath is not per se a flawed decision in terms of authority or discretion.
  4. The petitioners, who did not accept the result of the verdict, filed a motion for a further hearing, and on July 12, 2017, Deputy President (ret.) E. Rubinstein granted it. In his decision he explained:

 

“Do we have before us a rule in the sense of Section 30(b) of the Courts Law? In my opinion, the resulting state of affairs shows an answer in the affirmative. Indeed, sometimes there is uncertainty in cases like this […], and we are further dealing with a procedure in which restraint was exercised, but once the verdict was rendered against the background of a flaw in the conduct of the authority and with a

 

And later it was written:

“Irrespective of the result, the Sabbath, whose status in global Judaism needs no elaboration, deserves to have its case considered and clarified when all positions are before the Court, especially considering the broad implications, stakes and importance for others […]” (ibid, para. 12).

  1. On August 8, 2017, we heard the parties’ oral arguments before this expanded panel. The disagreements between the parties can be distilled into two questions: The first question before us is the validity of Amendment No. 2, in light of the various transformations it underwent; A second question that arose is whether the amendments meet the standards of administrative law. These are the questions that need to be decided in the further hearing. I will address them in order.

 

The Validity of Amendment No. 2

        The Transformations of Amendment No. 2

  1. The Municipality submitted Amendment No. 2 to the Minister of Interior for approval on August 13, 2014. About two months later, on October 7, 2014, Interior Minister Saar ordered a delay in publishing the amendment. In doing so, he exercised his power under Section 258 of the Ordinance, which says:

 

Approving and(a) Once the council approves a by-law,

Publishing By-Laws the mayor will sign it, and the

by-law will be published in Reshumot.

(b) A by-law will not be published as detailed in subsection (a) until six days have passed from the day the mayor brought the by-law to the attention of the Minister; If the Minister or his authorized representative announces that he does not oppose the by-law, the by-law will be published even before the end of this period.

(c) During the period specified in subsection (b), the Minister may order a delay in publishing the by-law, so long as he does not decide to do so without the Minister or his authorized representative having first detailed his reservations and given the mayor or his authorized representative an opportunity to raise claims against the delay in publishing the by-law.

(d) If the Minister delays the publication of a by-law as specified in subsection (c), he may do one of the following:

(1) Order a cancelation of the delay;

(2) Invalidate the by-law for reasons he will enumerate;

(3) Return the by-law with his comments to the council for reconsideration.

(e) If the Minister cancels the order to delay publication of the by-law, the by-law will be published in Reshumot.

 

The text of the section teaches us, therefore, that the decision to delay is not the end of the story. Subsequent to it, there must be a decision on the merits – cancelling the delay and publishing the by-law, invalidating the by-law or returning it to the city council with comments. A decision of this kind was not forthcoming, and in the meantime the petitions that are the subject of the further hearing were scheduled for oral hearings before this court.

  1. The hearing took place on July 6, 2015, and at its conclusion it was decided:

“1. After some back-and-forth, the Tel Aviv municipality […] and the state agreed to the following:

  1. The Municipality will not insist on chapter 4 of its petition [about delaying Amendment No. 2 – M.N.].
  2. Within 7 days, the Municipality will submit answers to the questions that the Minister of Interior has posed regarding Amendment No. 2 to the by-law, without prejudice to the claims that the Minister of Interior acted without authority on the substance of the issue.
  3. Ninety days thereafter (the court’s recess days are included in the count), the Minister of Interior will issue a decision regarding Amendment No. 2.
  4. The Municipality and the other parties reserve their right to raise claims regarding the decision that will be issued.
  1. The Minister of Interior’s decision will be submitted to the court and all the parties to the petitions listed in the heading within 100 days from today, counting the days of the court recess.
  2. We take note of the fact that the other petitions have yet to be considered, and the parties’ arguments will be heard at a time that will be determined” (emphases added – M.N.).
  1. On October 13, 2015, after the one hundred days set in the above-mentioned decision had passed, the state informed the court that then-Interior Minister Silvan Shalom, who had begun to examine the issue, discovered a conflict of interest that prevented him from making a decision, and that therefore the issue was referred for a governmental decision about transferring the authority to another minister. Two months later, on December 14, 2015, the state informed the court that the government had decided, on December 13, 2015, that “Within 4 weeks a decision will be made regarding the appropriate mechanism for exercising the authority of the Minister of Interior.” On December 24, 2015, the state made an additional filing, informing the court that the authority of the Minister of Interior had been transferred to the government, and that a committee of directors-general had been established to discuss the issue and make recommendations to the government within 180 days.
  2. On March 28, 2016, an additional hearing was held, and the court subsequently issued orders-nisi in the petitions. Seven months after the committee of directors-general was established, on August 4, 2016, the state updated that the committee had completed its discussions, and that the deadline for submitting its recommendations had been extended by 45 days. Approximately five months later, on January 17, 2017, the state informed the court that the government had held a discussion about Amendment No. 2 in its meeting on January 8, 2017, during which the director-general of the prime minister’s office clarified that the committee of directors-general had not arrived at a single agreed-upon recommendation. The committee presented the government with a “range of possibilities” that arose in its discussions, which spanned the gamut between approving Amendment No. 2 as written to completely invalidating it. At the end of the discussion, the government decided to delay a decision on the matter, pending a decision on merging the cities of Tel Aviv-Jaffa and Bat-Yam – a process about which, at the time, not even a first decision had been made.
  3. On January 23, 2017, a third hearing was held in the petitions, and at its conclusion they were referred to the court for a decision. A week later, on February 3, 2017, the state informed the court that on January 29, 2017, the government decided to restore the authority to the current Minister of Interior, Aryeh Deri, and that he intended to make a decision within sixty days. From that update and until the issuing of the judgment that is the subject of the further hearing, two and a half months later, no additional update from the state was received. In the verdict rendered on April 19, 2017, it was held that, in light of the long time that had passed – a duration of two and a half years – the failure to make a decision on the merits should be viewed as a decision to invalidate Amendment No. 2 without explanations. Because the state did not meet its burden of providing a reason that would justify such invalidation, the court held that the decision to invalidate Amendment No. 2 was invalid.
  4. On May 3, 2017, the petitioners filed a motion for a further hearing. They attached to that motion a document signed by Interior Minister Deri, dated April 9, 2017. That document shows that the Minister of Interior decided to invalidate Amendment No. 2. The reason was his determination that consideration for the autonomy of the Municipality did not justify the scope of the infringement of Amendment No. 2 on the social and religious-national values that form the basis of making the Sabbath a national holiday (hereinafter: the Interior Minister’s position). The Interior Minister’s position was not submitted to the Court prior to the rendering of the verdict, and it was not submitted to the Municipality. The verdict was therefore rendered in the absence of the Interior Minister’s position being placed before the Court. In any event, we were not informed that the Minister had reached a decision.

In its response of June 23, 2017 to the motion for a further hearing, the state clarified that the Minister of Interior first informed the Attorney General of his intention to invalidate Amendment No. 2 on April 18, 2017. At the request of the Attorney General, an unsigned copy of the above-mentioned document was submitted for his review on April 19, 2017, a few hours before the verdict was rendered. Under these circumstances, “the state believed that it would have been inappropriate to submit the Minister of Interior’s decision to the Tel Aviv Municipality at that time” (ibid, para. 47).

  1. The question of the status of the Interior Minister’s position is at the heart of the central dispute between the parties to the further hearing. The parties also disagree regarding the lawfulness and reasonableness of invalidating Amendment No. 2 on the merits.

 

The Parties’ Claims Regarding Amendment No. 2 and the Interior Minister’s Position

 

  1. The merchants claim that the Interior Minister’s position is the sole starting point for the further hearing. That position, they argue, reflects the consistent position of the executive branch and the legislative branch, and therefore it should be determinative. The Merchants also argued that, on the merits, there is no cause for intervening in the Interior Minister’s position, which takes into consideration all the ramifications of Amendment No. 2 and reflects a clear, values-based decision on a complex and sensitive issue.
  2. In contrast, the state argued that the current proceeding is inappropriate for evaluating the lawfulness of the Interior Minister’s position. In its opinion, that position was not reviewed in the verdict that is the subject of the further hearing, and given the unique character of this proceeding, it would be inappropriate to review the position at this stage. In its argument summary, the state did not address the Interior Minister’s position on the merits, but in response to our questions during the oral hearing, the position of the Attorney General was submitted using the following words:

“The Interior Minister’s decision indeed raises significant legal difficulties, primarily given the extent of the intervention that the central government may exercise into the autonomy of the local authority. Having said that, the decision does not rise to the level of extreme unreasonableness, and that is once we consider that, under the unique circumstances of this case, as a practical matter, the result of the decision is to accommodate the will of the local authority to a certain extent by opening the three sites, convenience stores, and shops in Jaffa on the Sabbath. The Attorney General believes that, were the result of the Minister of Interior’s decision to be that no shop would be open and there would be no accommodation of the will of the residents, then the issue would reach the level of extreme unreasonableness” (Transcript of August 8, 2017 hearing, p. 28, lines 18-24).

 

Having said that, the state repeated its position in principle that this is not the appropriate stage at which to consider the lawfulness of the Interior Ministry’s position (See: ibid, line 25). In his argument summary, filed pursuant to my decision of July 31, 2017, the Minister of Interior argued that it would be proper to rule on the merits of his position, considering the importance of the issue in principle.

  1. The Municipality claimed that it would be inappropriate to rule on the Interior Minister’s position at the current stage of the proceeding. The Municipality also claimed that the Interior Minister’s position, given its timing, does not justify deviating from the finding in the verdict that is the subject of the further hearing, namely that the state’s conduct is defective due to laches that are so extreme, they turn the delay into an unexplained refusal. In any event, according to the Municipality, the Minister of Interior’s authority to invalidate the amendment expired a long time ago. On the merits, the Municipality claimed that the Interior Minister’s position was based on extraneous considerations and suffers from extreme unreasonableness.

The Validity of Amendment No. 2 – Discussion and Resolution

  1. Does the Interior Minister’s position have consequences for the validity of Amendment No. 2? In my opinion, the answer is no. The state is correct in its argument that the current proceeding is inappropriate for evaluating the lawfulness and reasonableness of the Interior Minister’s position, which was not brought before the panel in the proceeding that is the subject of the further hearing. The procedure of a further hearing is intended for clarifying a rule that was decided in a verdict, and not for discussing what the verdict does not contain (see: FH Civ Haran v. Charitable Trust Foundation of the Late Gavrialovich [unpublished] (September 15, 2010); FH Civ 8184/13 Dabah v. State of Israel [unpublished] (May 8, 2014); FH Civ 1075/14 Keren Hayesod – United Israel Appeal v. Jewish National Fund via the Israel Land Administration [unpublished] (July 15, 2014); FH Crim 6876/14 Doe v. State of Israel [unpublished] (December 17, 2014); FH HCJ 360/15 Hamoked: Center for the Defence of the Individual V. Minister of Defense [unpublished] (November 12, 2015). The Interior Minister’s position was not submitted to the Court in the proceeding that is the subject of the further hearing. The parties to the case did not make arguments about it, and the Court did not give its opinion about it. There is therefore no room to consider it at this stage of the proceeding (See and compare FH 2/64 Koenigshofer v. Humphert, 18(3) PD 377, 383 (1964); See also my opinion in FH Civ 3993/07 Jerusalem Tax Assessor 3 v. Ikafood Ltd., 65(1) PD 238, 320-324 (2011)).
  2. Indeed, “You can’t turn back the clock” (FH 3/58 Finance Minister v. Freight and Container Ships Ltd., 12 PD 1849, 1854 (1958); See also ibid, page 1852). That is particularly true when, as is in our case, the Municipality was not made aware of the Interior Minister’s position, and the position was not made public but rather remained buried in the Minister of Interior’s drawer, even though ten days passed between the time it was reached and the publication of the judgment (See and compare App Civ 5945/04 Jerusalem Tax Assessor 1 v. Sami [unpublished], para 10 of my judgment (April 22, 2007). The rule is that “Norms that have ramifications for the collective or for the rights of individuals must be made public, so that everyone can know what the law says […]. Law that is made public is binding law, it and not documents of whose existence individuals and the collective, all of them or some of them, are unaware” (App Civ 3213/97 Naker v. Herzliya Local Planning and Zoning Committee, 53(4) PD 625, 648 (1999); See also and compare App Civ 421/61 State of Israel v. Haus, 15 PD 2193, 2204-2205 (1961)).
  3. Another reason not to deviate from the decision reached in the verdict regarding Amendment No. 2 is the timing in which the Minister of Interior’s position was received. It should be noted: the decision to delay the publication of a by-law is not a final decision. It must be followed by a decision on the merits (see art. 258(d) of the Ordinance). In my opinion, we don’t need to rule on the principled question of what is the precise time period in which a minister of interior, who has ordered delay of the publication of a by-law, must make a final decision on the merits of that ordinance, in order to determine that this particular decision came too late. I will explain.
  4. In our case, Minister of Interior Gidon Saar made his decision to delay publication on October 7, 2014, during the sixty day period allotted in Article 258 of the Ordinance. Time passed, and no decision was made on the merids of the amendment. After about nine months, the parties reached an agreement in the context of litigation, which was validated by the court in its July 6, 2015 decision. According to the terms of that agreement, the minister of interior committed, as noted, to submit his decision to the court and the other parties “within 100 days from today” (ibid, emphasis added – M.N.). The deadline for making a decision on the merits of Amendment No. 2 was – according to the agreement – therefore October 16, 2015. That deadline passed. No decision on the merits was reached, and every few months, the state would issue an “update” to the court, saying that no decision had been reached (as enumerated in paragraphs 9-11). Despite repeated comments from the court to the effect that the executive branch is refusing to decide a question placed before it (see my decision of December 15, 2015 (“[As] we repeated and emphasized, the executive branch must made a decision”); Transcript of March 28, 2016 Hearing; Transcript of January 23, 2017 Hearing), the state acted as if it had all the time in the world. No additional agreement was reached by the parties, and none was requested in any event, and no judicial decision was issued to authorize deviating from the timeline set. The Minister of Interior’s Position, dated April 9, 2017, missed the deadline, therefore, by about a year and a half.

I don’t see a legal justification for intervening in the holding made in the decision that is the subject of the further hearing, namely that under the circumstances described, we are dealing with a refusal made without providing reasons (see paragraph 18 of the verdict and the sources cited therein). Based on what has been said thus far, the request for a further hearing should be rejected.

  1. Having said that, and once Deputy President (ret.) E. Rubinstein decided that “the Sabbath deserves … to have its case considered and clarified when all positions are before the Court” (his decision of July 12, 2017), I see fit to address the merits of the Minister of Interior’s position, even though arguments for dismissal forestall that. Evaluating the merits of the Minister of Interior’s position leads to the same result, denying the request for an additional hearing. I will explain.
  2. As noted, the Minister of Interior thought that Amendment No. 2 should be completely invalidated. To his way of thinking, the consideration that should be accorded to the local authority’s autonomy does not justify the “extent and the derivative meaning of the harm that Amendment No. 2 causes to socio-social and national religious values and purposes that are the basis of the designation of the Sabbath as a day of rest” (para. 59 of the Interior Minister’s position). In his introduction, the minister addressed the importance of the Sabbath in Jewish heritage:

“The Sabbath and its observance is [sic-trans.] a bedrock of the secret of the Jewish people’s existence. Sabbath observance is one of the commandments that the children of Israel were commanded to observe in the ten commandments […]. Numerous ideas in the foundations of the Jewish people’s belief are included in and derive from this commandment and its observance. As is known, the Sabbath was designated as a day of rest in the State of Israel from its very founding. Two purposes are at the heart of this weekly day of rest: a socio-social purpose and a national religious purpose, which are intertwined” (ibid, paras. 16-17).

The Minister of Interior believes that Amendment No. 2 significantly infringes on the social purpose of the day of rest. That is due to the competitive disadvantage it creates for small business owners which constitutes “harm to and thwarting of” their ability to exercise their right to a day of rest (ibid, para. 35), and due to the employment of workers who are “an interchangeable work force […] of weak socio-economic status” in businesses that would be permitted to open on the Sabbath (ibid, para. 41).

  1. Additionally, The Minister of Interior thought that Amendment No. 2 significantly undermines the national-religious status of the Sabbath and the way the public sphere looks during the Sabbath. That is due to its deviation from the status quo, which allows places of entertainment to open, but prohibits purely business activity:

 

“Throughout the years, as per the status quo that represents broad national agreement regarding activities on the Sabbath, places of entertainment have been allowed to open […] but commercial activity and opening commercial establishments has not been permitted. The draft by-law put forward now proposes, for the first time, to allow pure, undeniably business activity throughout the city of Tel Aviv” (ibid, para. 45).

He believes that should not be allowed, especially considering the scope and size of the area where sales would take place and the fact that the amendment applies to businesses that do not sell food for immediate and urgent needs. Similarly, he thinks it would be wrong “to recognize the Tel Aviv Municipality’s claim that a “need” that can be recognized in order to justify undermining the purposes of the Sabbath is essentially just a need to satisfy the “will” of the residents, based merely on their preferring the convenience of a particular arrangement – and no more than that” (ibid, para. 51).  That is particularly true because, in his opinion, the will of the residents and the “habit” for which they are asking to open businesses “is the result of violations of the law and years in which it was not enforced” (ibid).

  1. The Minister of Interior also stated that the arrangement that the municipality adopted risks becoming a model for other towns in Israel, and therefore Amendment No. 2 would trigger changes in the character of the Sabbath throughout Israel:

“Under these circumstances, the dam would burst and [the] opening of businesses on the Sabbath would risk turning into a breached vision throughout the country […]. Therefore, in essence, it is not a single by-law that hangs in the balance but rather the appearance of the Sabbath and its character, as a national, general matter, hang in the balance” (ibid, para. 58).

For that reason, he believes, “in the broad perspective granted the central government” (ibid, para. 57) emphasis eliminated – M.N.)) invalidating Amendment No. 2 is justified.

  1. According to the State, although the Minister of Interior’s position “arouses significant legal difficulties,” it “does not reach the level of extreme unreasonableness.” I cannot accept that argument. The Minister of Interior’s position did not appropriately consider the uniquely autonomous status of the Municipality, and therefore is not reasonable. I will explain. Local autonomy, meaning “the direct connection of the local authority to the law, unmediated by other governmental authorities” (HCJ 3791/93 Mishlev v. Minister of Interior, 47(4) PD 126, 132 (1993) (hereinafter: the Mishlev case) is “the basic principle of local administration” (Itzhak Zamir, Hasamchut Haminhalit [Administrative Authority], Vol. 1 453 (2nd ed. 2010) (hereinafter: Zamir) (emphasis added – M.N.)).
  2. If that is so, in exercising his authority under Article 258, the Minister of Interior should accord significant weight to local autonomy, as “those wielding authority from the central government should be guided by the need to act with respect toward the elected officials of the local authority – toward them and those who elected them – and to remember that the days of coercive paternalism have passed” (Mishlev case, p.131; See also: Zamir, pps. 451-453, 477;  FH HCJ 3201/96 Agriculture Minister v. Lod Valley Regional Council, 61(3) PD 661, 663 (1997); HCJ 2838/95 Greenberg v. Katzrin Local Council, 53(1) PD 1, 10-15 (1997); FH HCJ 1913/13 Muasi v. Minister of Interior, 52(2) PD 49, 66 (1998); HCJ 10104/04 Peace Now v. Supervisor of Jewish Towns in Judea and Samaria, 61(2) PD 193, 168 (2006); See also and compare: HCJ 4381/97 Meizlik v. Petah Tikva Local Planning and Zoning Council [unpublished], para. 57 of Justice E. Rubinstein’s judgment (December 29, 2009)). As was noted in a case similar to ours:

“With regard to the degree of intervention of the central government in the enactment of the bylaws, the Attorney-General’s position was that the power to disqualify bylaws that do not deal with issues that affect the central government or that extend beyond the boundaries of that local authority should be exercised in moderation. As a rule, the Minister of the Interior should not replace the discretion of the local authority with his discretion where the authority acted within its power and in a reasonable manner. The Minister of the Interior has no technical ability to consider in depth the considerations that guided the local authority and the factual basis that was used to enact the bylaw, nor is it right that he should do so” (HCJ 953/01 Solodkin v. Beit Shemesh Municipality, 58(5) PD 595, 606 (2004) (hereinafter: Solodkin case).

  1. The Minister of Interior’s position in this case did not really take into consideration the autonomy of the Municipality. Indeed, the Minister of Interior clarified that he does not think the will of the city’s residents is adequate to justify any harm to the purposes of the Sabbath and to permit businesses to open. The Minister of Interior focused on the character of the Sabbath at the national level, without giving expression to the local character and the circumstances of Tel Aviv-Jaffa. His explanation was that if Amendment No. 2 were to be approved, “the dam would burst” and the arrangement that the Municipality adopted would become a model for other towns in Israel. I cannot accept this explanation. Legal standards should not be changed on basis of mere assumptions regarding potential consequences that the future may hold. Indeed, “Thus, while it may very well be that the slippery slope is indeed quite perilous, the slippery slope argument is by far more dangerous” HCJ 5016/96 Horev v. Transportation Minister, 51(4) PD 1, 74 (1997)). The infringement on the municipality’s autonomy is particularly problematic in this case, because local authorities in Israel were explicitly authorized to legislate by-laws that govern the opening of businesses on the Sabbath (See: Law to Amend the Municipalities Ordinance (No. 40), 5751-1990 (hereinafter: the Authorizing Law). One of the purposes at the foundation of the Authorizing Law is specifically that these issues should be regulated at the municipal, local level, and not at the national level.
  2. This purpose is well-grounded in precedent. I noted as much in the Bremer case:

“If the nature of the city of Tel Aviv-Jaffa requires, in the opinion of its leaders who represent the population, not to close businesses such as those of the Respondents, on the Sabbath, the By-Law can be changed through the manner prescribed in the law […] The Attorney General stated that the Municipality is authorized to strike a balance "between the interest of preserving the nature of the Sabbath as a day of rest […] and making certain economic activity possible". However, in my opinion, the appropriate place for striking such a balance is in a Municipality decision whether to promulgate a by-law regarding the activity of businesses on the Sabbath and formulating the arrangements prescribed” (ibid, para. 52 of my opinion).

And in another case, President M. Shamgar ruled:

“Pursuant to the amendment to the Authorizing Law, which added paragraph (21) […] reasons related to religious tradition were authorized as relevant in enacting by-laws under paragraph 20 […]. Article 249(20) [of the Ordinance-M.N.] does not set mandatory guidance for the local authority but rather merely grants it power. That is understood, because we are talking about an authorizing provision whose application and method of implementation remain in the hands of the local authority” (HCJ 5073/91 Israel Theaters Ltd. v. Netanya Municipality, 57(3) PD 192, 207 (1993) (hereinafter: the Israel Theaters Case).

This court noted even before the Authorizing Law was enacted:

“This issue of opening and closing shops is inappropriate for national legislation. It should be regulated specifically at the local legislative level, because it is an issue which requires taking into consideration the make-up of the population of each place, its habits and ways of life and the character of that place” (Crim App 858/79 Lapid v. State of Israel, 34(3) PD 386, 391 (1980)).

Regarding another authorizing law, which addresses the sale of pork on the territory of a local authority, it has been established that:

“The purpose was therefore that the balance between the conflicting purposes — the considerations concerning the protection of religious and national sensibilities, on the one hand, and the consideration of individual liberty, on the other — would not be made on a national level, according to a principled balancing that the legislator determined. Instead, the purpose was to make a balancing at a local level. In this local balancing, the character of the authority and the changing particulars of each local authority would be taken into account. (Solodkin case, p. 610; See also: HCJ 163/57 Lubin v. Tel Aviv-Jaffa Municipality, 12 PD 1041, 1076 (1958)).

  1. We should not mix things up. The authority to make the value judgment within the framework of the by-laws belongs to the Municipality, not to the Minister of Interior.  The Minister of Interior does not evaluate whether the decision is optimal, in his opinion, but rather whether it is within the zone of reasonableness. In that sense, in my opinion, the broad perspective given to the Minister of Interior was intended, for example, to ensure that the by-law that a particular local authority enacted does not create a negative externality for other local authorities (take for example a local authority that decides to bury its garbage on the outskirts of its borders, next to another city). Indeed, leaving the judgment in the hands of the municipality was intended to realize the principle of municipal autonomy. Beyond that, however, it was also intended to realize a central aspect of the Authorizing Law, namely tipping the scales in favor of local considerations, and no one is in a better position than the municipality to evaluate them. A decision by the Minister of Interior is intended to oversee the lawfulness of a decision by the Municipality, not to replace its discretion.
  2.  Furthermore, the Minister of Interior’s position contradicts an additional central purpose at the foundation of the Authorizing Law – the balancing purpose. This purpose affects the scope of the Minister of Interior’s discretion pursuant to Article 258 of the Ordinance (See and compare: the Solodkin case, p. 621). The Minister of Interior’s position is sweeping in character, and it would prohibit opening any grocery store at all – and indeed any commercial establishment, except for a critical need – without reference to a city’s circumstances or the will of its residents. We might wonder: If the solution is so simple, why did I take more than two whole years to reach it? I will dare to say that the HCJ [High Court of Justice-trans.] is again being called upon to do the dirty work. After the HCJ does that dirty work, one can say, “It wasn’t me (the Minister) – it was the HCJ.”
  3. In any event, the Minister of Interior’s position is inconsistent with the Authorizing Law, which relies entirely on a purpose of compromise and balancing (see: the Israel Theaters case, p. 207; the Bremer case, para. 52 of my opinion; See also and compare: the Solodkin case, p. 622). It is a balance between the conflicting rights within the circumstances of the particular case: the balance between freedom of religion, on the one hand, and freedom from religion, on the other; the balance between equality on the one hand, and freedom of occupation on the other. In my opinion, considering this purpose of the Authorizing Law, a sweeping position that lacks a balance reflecting the character of a city, the uniqueness of the different areas within it and the distances between them – is unreasonable.
  4. I have thus reached the conclusion that, even if the Minister of Interior’s position had been submitted on time and considered on its merits, there would be no cause to deviate from what was decided in the verdict which is the subject of the further hearing determined regarding Amendment No. 2. Amendment No. 2, therefore, remains valid. The question remains whether Amendment No. 2, like Amendment No. 1, meet the standards of administrative law. I will now address that question.

The Amendments’ Compatibility with the Standards of Administrative Law

 

The Parties’ Arguments on the Amendments’ Compatibility with the Standards of Administrative Law

  1. The merchants raised many arguments against the compatibility of the amendments with the standards of administrative law. Regarding authority, the merchants argued that the amendments constitute a primary arrangement that the Municipality is not authorized to regulate. That is especially the case, they argue, because the Authorizing Law only authorizes the Municipality to order the closing of places of entertainment and not the opening of businesses. The merchants also argued that the amendments contradict the Hours of Work and Rest Law, 5711-1951, which, they say, proscribes the opening of businesses on the Sabbath. Their claim is that the Hours of Work and Rest Law is on a higher normative plane, and therefore such contradiction negates the amendments. However, after we held oral hearings, and upon hearing our comments, the merchants withdrew that claim (see: Motion of August 31, 2017). Regarding discretion, the position of the merchants was that the amendments are unreasonable, because they contradict the status quo that reflects a decisive rejection of commerce on the Sabbath, in contrast to the activity of places of entertainment. The merchants also claimed that the amendments are unreasonable, both due to their broad implications – which, they argue, threaten to strip the laws regarding rest of their power – and also because they infringe on equality and encourage criminal activity.
  2. Gindi also argued that the amendments are unreasonable, emphasizing claims it made in the proceeding that is the subject of the further hearing. It believes that the Municipality should be ordered to add the site, “Sarona Market”, which it owns, to the list of commercial sites where Amendment No. 1 permits businesses to open on the Sabbath. That is primarily because the decision not to include the site on the list was based on extraneous considerations, as the Municipality partially or completely owns the three sites which it permitted to open on the Sabbath.
  3. The state and the Municipality argue that there is no cause to intervene in the court’s holding in the verdict that is the subject of the further hearing, namely that the amendments were enacted pursuant to lawful authority and that they do not deviate from the zone of reasonableness. The state also claims that there is no contradiction between enacting the amendments, which was done pursuant to the Authorizing Law, and the Hours of Work and Rest Law, because these legal provisions address different issues. This approach, the state argued, is consistent with this court’s jurisprudence and with interpretive considerations.
  4. The Minister of Interior’s position, which was separately attached to the state’s argument summary (see: my decision of July 31, 2017), was different. Like the merchants, he believes that Article 9A of the Hours of Work and Rest Law proscribes the very opening of commercial businesses on the Sabbath. Therefore, he argues, the Authorizing Law cannot supersede this provision, and it does not authorize the Municipality to permit opening businesses on the Sabbath.

 

The Issue of Authority – Discussion and Ruling

 

  1. The merchants’ arguments regarding the Municipality’s lack of authority to enact the amendments are not new. These claims were raised and rejected in the verdict that is the subject of the further hearing. I see no reason to deviate from that ruling. First, the merchants argued that the Authorizing Law does not authorize the Municipality to permit opening businesses on the Sabbath, because it only addresses the closure of places of entertainment. That claim must be rejected.
  2. The Authorizing Law came about due to the doubt that arose regarding the authority of local authorities to enact, in their by-laws, provisions that, for religious reasons, proscribe opening places of entertainment on the Sabbath (see: Crim Case (Jerusalem Magistrate) 3471/87 State of Israel v. Kaplan [unpublished] 5748(2) PM 26 (1987) (hereinafter: the Kaplan case). Indeed, the Authorizing Law was intended to remove that doubt and to guarantee the continued validity of the existing by-laws. However, its purpose, as defined, was “to grant local authorities the authority to regulate the prohibition on opening businesses on days of rest,” including for reasons related to religious tradition (Explanatory Notes of the Local Authorities Bill (Prohibition on Opening and Closing Businesses on Days of Rest), 5748-1988, H.K. 134 (emphasis added – M.N.); See also the Israel Theaters case, p. 2017; the Bremer case, paras. 27-28 of my opinion). In any event, the text of the Authorizing Law is clear.
  3. The Authorizing Law explicitly authorizes the local authorities in Israel to enact provisions in their by-laws that address opening businesses in their domains on the Sabbath. The Authorizing Law added, inter alia, Article 249(21) to the Ordinance, which says that:

 

A municipality may use its authority pursuant to paragraph (2) within its jurisdiction or in part of its jurisdiction regarding days of rest, taking into consideration reasons of religious tradition and regarding the day of Tisha Ba’av […];

The above-reference article explicitly refers to Article 249(21), which addresses “the opening and closing of shops”:

 

  •  

and Closingrestaurants, coffee shops, tea houses, drinking establishments,

  •  

 

I cannot accept the argument that a law that authorized, inter alia, “regulating the opening […] of shops and factories […]” was intended to apply only to places of entertainment or only to regulating the closure of businesses. That argument is incompatible with the clear text of the law (for more on the municipality’s authority to permit opening businesses on the Sabbath see: the Bremer case, para. 52 of my opinion). 

  1. The merchants and the Minister of Interior raised an additional argument on the issue of authority, namely that there is a contradiction between the amendments and the Hours of Work and Rest Law. According to that argument, the Hours of Work and Rest Law prohibits opening businesses on the Sabbath, and therefore the By-Law cannot permit them to open. That argument should also be rejected. Indeed, as the state noted, we are dealing with two sets of laws that operate on different planes and do not contradict each other. To the contrary: they complement each other. Business owners whose activity on the Sabbath has been approved within the framework of the amendments are still subject to the provisions of the Hours of Work and Rest Law, and obviously they must abide by them. I do not accept the merchants’ position that the Hours of Work and Rest Law contains a sweeping prohibition against opening businesses on the Sabbath. In my opinion, an interpretation of that kind is inconsistent with the text and purpose of the law.
  2. Indeed, during the oral hearing, the merchants argued that the procedure before us is inappropriate for ruling on the interpretation of Article 9A of the Hours of Work and Rest Law. In addition, a week after the hearing (on August 13, 2017), the merchants filed a motion to supplement their arguments on that issue. In our decision of August 14, 2017, we denied that motion. Despite their motion being denied, on August 31, 2017, the merchants submitted a long line of documents on the subject, attached to an “urgent update and motion” from them. In that framework, they moved for the court “to refrain from addressing the question of the meaning of the prohibition set in Article 9A of the law” and stated that they wanted to relinquish their argument about the contradiction between the amendments and the Hours of Work and Rest Law. That motion was also denied (see our decision of August 31, 2017). We must therefore rule on the issue of the correct interpretation of Article 9A of the Hours of Work and Rest Law. That is especially true, given Deputy President (ret.) E. Rubinstein’s ruling that “the further hearing will apply to the entire verdict” (para. 12 of his decision of July 12, 2017), and given that the above-stated issue was placed at our doorstep by the merchants in the framework of the procedure that is the subject of the further hearing, and in any event was raised by the Minister of Interior in the summary of argument submitted on his behalf.
  3. The Hours of Work and Rest Law prohibits employment and work on the weekly day of rest. It says:

Prohibition 9. An employee shall not be employed during his weekly rest, unless

Of Employment such employment has been permitted under section 12.

During Weekly

  •  

 

  • On the prescribed days of rest […] the owner of a workshop of

Of Work [sic] industrial factory shall not work in his workshop or industrial

During Weekly factory, and the owners [sic] of a shop shall not do business in his

Restshop.

(b) On the aforesaid days of rest, a member of a cooperative society

shall not work in a workshop or industrial undertaking of the society; a

member of an agricultural cooperative society shall not work in a

workshop or industrial undertaking of the society unless the work is

connected with the services necessary for its farm […]

 

Permission 12. (a) The Minister of Labor and Social Affairs may permit an

For employee to be employed during all or any of the hours of weekly

Employment rest, if he is satisfied that interruption of work for all or part of the

On Weeklyweekly rest is likely to prejudice the defense of the State or the

Restsecurity of persons or property or seriously to prejudice the economy, or a process of work or the supply of services which, in the opinion of the Minister of Labor and Social Affairs, are essential to the public or part thereof.

 

 

  1. My opinion is that the Hours of Work and Rest Law does not address the question of opening or closing businesses on the day of rest, but rather with the personnel question of work on the day of rest.  I draw that conclusion from the text of the clauses and their captions, which use the words “employment” or “work” (see: Aharon Barak, Parshanut Tachlitit Bamishpat [Purposive Interpretation in Law], 401-402 (2003) (hereinafter: Barak)). Similarly, from reading the explanatory notes for Amendment No. 1 of the law it is clear that Article 9A, which was added at the same time, was not intended to serve as a provision that requires closing businesses, but rather was intended to expand the application of the prohibition of employment (see: ibid, p. 407). According to the explanatory notes of the amendment:

 

“The Hours of Work and Rest Law, 5711-1951 currently applies to salaried employees only. The suggested amendment would also subject factory owners, members of a cooperative society and shop owners to the provisions regarding days of rest, with some caveats” (Explanatory Notes of the proposed Hours of Work and Rest Law (Amendment), 5727-1966 (1966, H.H. 136).

 

This approach is supported by the fact that we are dealing with a law that infringes on the constitutional right to freedom of occupation (see: HCJ 5026/04 Design 22- Shark Deluxe Furniture Ltd. v. Director of Sabbath Work Permits Department – Ministry of Labor and Social Affairs, 60(1) PD 38, 51 (2005) (hereinafter: the Design 22 case)) and that carries criminal sanctions (see: art. 26 of the Hours of Work and Rest Law). These reasons also lead to the conclusion that the appropriate interpretation is a narrow interpretation (see: Barak, p. 425).

  1. My conclusion that the Hours of Work and Rest Law does not create a sweeping prohibition on opening businesses on the Sabbath is also compatible with precedent regarding the Hours of Work and Rest Law, which held that it does not contain “a general provision about closing places on days of rest” (the Israel Theaters case, p. 206 (emphasis added – M.N.); See also: the Design 22 case, p. 63). In any event, let it be clear that the amendments were enacted pursuant to the Authorizing Law, and it is what authorizes the Municipality to permit businesses to open on the day of rest (see para. 39 above). If that is so, even if a contradiction were to exist, it would be a contradiction between the Authorizing Law and the Hours of Work and Rest Law, meaning between norms that are on the same plane. Under the non-interpretive standards we use (see: Barak, p. 117), the Authorizing Law would prevail as a law enacted subsequent to the Hours of Work and Rest Law (lex posterior derogate priori), and in any event it is a more specific law that grants power to the local authorities in Israel in a targeted way, in contrast to the generality of the Hours of Work and Rest Law (lex specialis derogate generali).
  2. In passing, I note that on the issue of the interpretation of the Hours of Work and Rest Law, as well as on additional issues that arose, we were presented with the position of Minister of Interior Deri that was, as noted, different from the state’s position. In the oral hearing before us, and in their response of August 20, 2017, the merchants argued that we should have allowed the Minister of Interior to present his position separately from the state. I reject that argument. According to the case law, “the position of the authorities (as opposed to the personal opinion of those holding office within them) on questions of law is determined, as an institutional matter, by the Attorney General” (HCJ 320/96 Garman v. Herzliya City Council, 52(2) 222, 239 (1998); See also: HCJ 4247/97 Meretz Party in Jerusalem City Council v. Minister of Religious Affairs, 52(5) PD 241, 277 (1998); HCJ 3094/93 Movement for Quality Government in Israel v. Government of Israel, 47(5) PD 404, 425 (1993); But compare: HCJ 6494/14 Gini v. Chief Rabbinate [unpublished], paras. 21-26 of the opinion of my colleague, Justice N. Sohlberg (June 6, 2016); But see also: ibid, paragraph D of the opinion of Deputy President E. Rubinstein; and also HCJ 6017/10 Israel Union for Environmental Defense v. Minister of National Infrastructure [unpublished], paragraph G of the opinion of Justice E. Rubinstein (July 3, 2012).

Indeed, the personal position of Minister of Interior Deri was different from the state’s position. The Attorney General agreed to bring it to our attention. In doing so, he acted within the scope of his authority. But that is not the position of the state, which is the litigant before us. The state’s position – as was presented before us and as should be presented before us – is the one that is decided by the Attorney General (See: HCJ 4267/93 Amitai – Citizens for Good Governance and Integrity v. Prime Minister of Israel, 47(5) PD 441, 473 (1993); See and compare also: Solodkin case, p. 607).

  1. I have therefore reached the conclusion that the Municipality did not exceed its authority when it enacted the amendments. However, as is known, authority is different from discretion. A number of arguments were raised regarding discretion. I will now evaluate them.

 

Issue of Discretion – Discussion and Ruling

  1. In the verdict that is the subject of the further hearing, it was held that the amendments are within the zone of proportionality within which the Municipality must operate. I do not see a cause for deviating from that holding, either. First, regarding Gindi’s claims that extraneous considerations influenced the decision not to include the site it owns on the list of sites in Amendment No. 1, because Gindi is a respondent, I doubt that it is possible to grant its motion for a remedy. In any event, in my opinion, the relevant considerations that the Municipality raised, the most important of which is the proximity to residential areas, suffice to preclude intervention in the By-Law based on Gindi’s arguments. Additionally, the merchants also raised a long line of arguments which, in their opinion, show that the amendments are not reasonable and not proportional.
  2. These arguments were presented by the merchants in the proceeding that is the subject of the further hearing. Inter alia, they repeatedly referred to documents they submitted in the procedure that is the subject of the further hearing, which included various statements that the mayor made on various occasions. I do not think that the procedure of a further hearing is the appropriate framework for reconsidering facts and arguments that were already presented and decided upon (See: FH 6/58 Mann v. Ayun, 12 PD 109, 112 (1958); FH Crim 5567/00 Deri v. State of Israel, 54(3) PD 601, 613 (2000); FH Crim 2334/09 Perry v. State of Israel [unpublished], para. 34 of the opinion of Justice A. Procaccia (ret.) (May 23, 2011)). A further hearing is not intended to facilitate arguments against the result of a particular proceeding by re-arguing the case before an expanded panel that exercises judicial review of the verdict. Instead, it focuses on the legal aspect. The procedure of a further hearing revolves around the legal precedent that was set in the verdict (See: FH 3379/91 Caspi v. State of Israel [unpublished] (August 15, 1991); FH Civ 1075/15 Blum v. Anglo Saxon – Asset Agency (Israel-1992) Ltd. [unpublished], para. 18 of my opinion (March 8, 2015)).
  3. At the legal level, my opinion is that the amendments are within the zone of discretion that the Authorizing Law granted to the Municipality. The merchants painted a gloomy picture of the amendments wreaking serious harm to their rights to equality and freedom of religion. It is true that the amendments violate the merchants’ rights and also the rights of others, a violation which, in my opinion, is beyond de minimus. In this context, the violation stems from both the opening of commercial establishments on the Sabbath as well as opening places of entertainment, and it also affects the social purpose and the national purpose at the heart of the designation of the Sabbath as a day of rest. In no way do I minimize this violation. However, the review does not end once a rights violation has been found. On the other side are the other rights that the amendments protect, including freedom of occupation and freedom of conscience. The heart of the review is the balance between the conflicting rights. The balance does not favor one worldview over another. It does not detract, not even a whit, from the status and importance of the Sabbath as national property of the Jewish people and as one of the values of the State of Israel as a Jewish and democratic state, as Ahad Ha’am said: “More than the Jewish people kept the Sabbath, the Sabbath kept them.” However, balance means letting a thousand flowers bloom. It means that, in addition to protecting the unique character of the Sabbath, we should also allow each individual to design his Sabbath as he wishes and according to his beliefs and to fill it with content as he sees fit. To borrow the words of Zelda, “To light candles in all the worlds – that is the Sabbath” (Zelda, “Sabbath and Weekday”). There is a reason the legislator saw fit to task the local authority with conducting this balance: so that the balance point it chooses will reflect the unique character of each city, the extent of communal life within it and the potential practical solutions that characterize its circumstances. Indeed, when the Sabbath begins, the city is draped in celebration, but the garment draping one city is different from the garment draping another.
  4. The balancing with which the local authority is tasked is not simple, but it is crucial for maintaining communal life in a diverse society like ours. Communal life is not “all or nothing” but rather is based on tolerance for a divergent opinion, mutual respect and mutual compromise. Communal life is not “black and white” but rather a spectrum. It is responsive to the recognition that human beings are free creatures who design their life narratives, but also to the recognition that they do so within the framework of society and not on a desert island. It is based on the understand that each of us bears responsibility for society as a whole, but that does not mean giving up on fundamental components of our identity or the uniqueness of each of us. It is not a perspective of “I won’t sign on to desecrating the Sabbath” but rather recognition of the indispensability of the perspective, “Live and let live”.
  5. In the case before us, a review of the amendments, in my opinion, points to the fact that they were enacted in order to achieve this balance. The amendments were designed to reflect a unique balance point that is appropriate for the city of Tel Aviv, taking into consideration the status of the Sabbath, the composition of the population in each neighborhood, its way of life and the nature of the city. Amendment No. 1 permits opening businesses in a very limited number of clearly delimited commercial sites that are disconnected from residential areas. Amendment No. 2 permits opening a limited number of grocery stores according to geographic location, in a way that considers the character of each area. The opening is subject to various restrictions, first and foremost the need to obtain a permit. Ultimately, in our case, we are talking about opening a limited number of businesses that constitute a tiny fraction of the number of businesses operating in the city during the week, and that also influences the proportionality of the measure. The balancing point chosen facilitates observing the unique character of the Sabbath and does not significantly change the look of the city, considering the existing normative situation. I am not saying this framework is optimal. There may be other frameworks that are also within the zone of proportionality. I am not even saying that this framework should or could be adopted in other cities. My ruling can be summarized as follows: the proposed amendments are within the zone of proportionality within which the Municipality operates, and there is no place to intervene in them.

 

Conclusion

  1. Therefore, if my opinion prevails, the motion for a further hearing is denied. Beyond what the law requires, and despite what is written in paragraph 41 [para. 40-trans.], no court costs will be imposed.

 

After These Words

  1. After writing these words, I read the opinions of my colleagues, Justices N. Hendel and N. Sohlberg. My position has not changed, but I feel I must add the following brief words:
  2. My colleague, Justice Sohlberg, commented that I favored “reasonableness above authority”, because, in his opinion, I focused on the question of the reasonableness of the Minister of Interior’s position and not on the question of the Municipality’s authority to enact the amendments to the By-Law (see para. 1 of his opinion). Indeed, as I noted, “authority is different from discretion (above, para. 46 [para. 45- trans.]) – but these are two stages of the review of the same administrative decision. In our case, as noted, the Minister of Interior’s position was that Amendment No. 2 should be invalidated. What needed to be reviewed was his authority to do so (and there was no dispute that the authority exists pursuant to Article 258 of the Ordinance, and therefore there was no reason to expand on that). At the second stage, the reasonableness of his exercise of discretion must be evaluated. A similar evaluation is required for the passage of the amendments by the Municipality: First, we must ask if the enactment of the amendments was done with the proper authority (see paras. 37-43 above [paras. 36-42-trans.]) and then the question arises whether there were flaws in the exercise of judgment (see paras. 47-51 above [paras. 46-50-trans.]). After that evaluation was completed, my conclusion regarding the authority of the Municipality to enact the amendments was different from that of my colleague Justice Sohlberg.
  3. This is not the place to restate all the reasons that formed the basis of my ruling (see paras. 37-39 above [paras. 36-38-trans.] regarding the Authorizing Law and paras. 40-44 [paras. 39-43-trans.] regarding the Hours of Work and Rest Law), but I will note that, in my opinion, the Authorizing Law specifically granted the local authorities in Israel the authority to regulate the opening and closing of businesses in their jurisdictions on the Sabbath, using by-laws. That is clear from the text of the law as well as from its legislative history (see: KP 12(3) 1192-1193 (5751) (U. Lynn (Chair of the Constitution, Law and Justice Committee)), and compare the wording of the bill in its first reading with the wording in the second and third readings). I think there is no dispute between me and my colleagues, Justice Hendel and Justice Sohlberg, about that.  However, our opinions diverge regarding the Hours of Work and Rest Law. In my opinion, as noted, it does not articulate a sweeping prohibition on all business activity on the Sabbath, and they disagree with that. I think the position of my colleagues does not reflect the full range of relevant sources regarding the purpose of the legislation (as noted, I will not repeat my explanation, but see paras. 41-43 above [paras. 40-42-trans.], and see also the comprehensive and clear opinion of my colleague, D. Barak-Erez at paras. 4-25), and especially the way the law was understood and implemented in the nearly half century that has passed since it was enacted, both by this court (see: the Israel Theaters case, p. 206; the Design 22 case, pps. 44, 46, 63), as well as by the administrative authority in charge of implementing it. In its argument summary, the state clarified that “the interpretation that has been determined, that Article 9A applies only to the personnel aspect of work during days of rest, is compatible with long-standing enforcement policy and the interpretation according to which the Ministry of Labor (in its various forms) operates” (ibid, para. 17).
  4. In my opinion, there is no contradiction between the Authorizing Law and the Hours of Work and Rest Law. Regarding this determination of mine, my colleague Justice Sohlberg wondered, “What is the point of the Authorizing Law?” (para. 16 of his opinion), noting that if the Hours of Work and Rest Law does not include a sweeping prohibition on opening businesses on the Sabbath, then the point of departure is that their opening is permitted. However, that, in my understanding, is exactly the justification at the heart of the Authorizing Law. It is a basic principle that one does not prevent a citizen from making a living “and one doesn’t get involved in this life in a purely administrative way” (HCJ 144/50 Shaiv v. Minister of Defense, 5 PD 399, 407 (1951)). It is true that the administrative agency has no authority other than that which the law grants it: “If an agency professes to deviate from the domain delimited, it leaves the domain recognized by law, and in that sense, its actions are null and void” (Baruch Bracha, Mishpat Minhali [Administrative Law], Vol. I 35 (1987); See als: Zamir, p. 73; Dafna Barak-Erez, Mishpat Minhali [Administrative Law], Vol. I 97 (2010) (hereinafter: Barak-Erez). As I noted, the Authorizing Law was enacted because of the doubt that arose regarding the authority of local authorities to enact provisions in their by-laws regarding prohibitions on opening businesses on the Sabbath (see para. 38 above [para. 37-trans.]; see and compare a similar authorizing law addressing the sale of pork; Solodkin case, pp. 602, 607-608). The Authorizing Law was enacted and granted the Municipality the authority “to regulate the opening and closing of shops, and workshops […]” on “days of rest, taking into consideration reasons of religious tradition”.   Accordingly, President M. Shamgar ruled in the Israel Theaters case that “Article 249(20) does not set mandatory guidance for the local authority but rather merely grants it power. That is understood, because we are talking about an authorizing provision whose application and method of implementation remain in the hands of the local authority” (ibid, p. 207); In accordance with that, I ruled at the time, in the Bremer case, that if the municipality believes that the character of a city justifies permitting certain businesses to be open on the Sabbath, it should amend the by-law (See: ibid, para. 52), and as a result the Municipality enacted the amendments that are the subject of our case. That was also my position in the verdict that is the subject of the further hearing, and that is my position now.
  5. For that reason, I cannot agree with the approach of my colleague, Justice Sohlberg, which declines to view the Authorizing Law as a law enacted subsequent to the Hours of Work and Rest Law. It is well-known that laws are not enacted for the sake of enacting them. The legal situation that existed prior to the passage of the Authorizing Law is different than the legal situation now. The Authorizing Law changed the face of the Municipalities Ordinance, which predates the Hours of Work and Rest Law. Article 249(20) of the Ordinance, which also predates the Authorizing Law, but within whose framework the case law had barred taking religious tradition into consideration, changed its form, and thanks to Article 249(21) it took on a new form. Therefore, as I noted (see para. 43 above [para. 42-trans.]), even if there were a contradiction between the Authorizing Law and the Hours of Work and Rest Law, then under the non-interpretive standards we use, the Authorizing Law prevails as a later law. That is because it was enacted in 1990, while Article 9A was added to the Hours of Work and Rest Law in 1969.
  6. As to the comment of my colleague Justice Sohlberg about the need “to limit the wingspan” of the reasonableness rationale (see paras. 35-36 of his opinion), I emphasize that my opinion differs from his. In this court’s jurisprudence going back nearly four decades, the reasonableness rationale is as an essential tool in reviewing the decision of an administrative agency (See: HCJ 389/80 Dapei Zahav Ltd. v. Broadcasting Agency, 35(1) PD 421, 435-449 (1980); See also Barak-Erez, Volume II, pps. 723-769 and especially p. 733). In my opinion, there is no flaw in the reasonableness rationale just because it is an abstract norm or an open-ended term. On the contrary: “that fact allows reasonableness to be a ‘bridge through which the law can provide modern solutions to new social problems’” (HCJ 3997/14 Movement for Quality Government in Israel v. Foreign Affairs Minister [unpublished], para. 2 of my opinion (February 12, 2105); For more on the importance of the reasonableness rationale in administrative law, see, e.g.: ibid, paras. C-D of Deputy President E. Rubinstein’s opinion, and paras. 3-6 of the opinion of my colleague, Justice E. Hayut; see also HCJ 5853/07 Emunah National Religious Women’s Movement v. Prime Minister, 62(3) PD 445, 486-489; 510-512 (2007), to which my colleague Justice Sohlberg referred (in that case, Justice A. Grunis’s position regarding the reasonableness rational, on which my colleague relied, remained a minority opinion, and Justices A. Procaccia and E. Arbel addressed the status and importance of the reasonableness rationale)). The sting of its vagueness is dulled following years in which case after case in Israeli common law shaped it, something that provides us a comprehensive body of rules to govern its implementation.
  7. My position, as stated, has not changed, and it is that the Municipality is authorized to enact provisions in its by-laws concerning the regulation of business activity on the Sabbath. Exercising this authority must withstand the standards accepted in our administrative law, and specifically it must be proportional. I also held (see paras. 49-51 above paras. 48-50-trans]) that the amendments in our case are within the zone of proportionality accorded to the Municipality, and therefore there is no room to intervene in them. This determination does not mean that there are no other frameworks for regulating business activity on the Sabbath that would also be within the zone of proportionality. If, for example, the municipality wanted to distinguish between places of entertainment and business establishments within the By-Law and to permit opening the former only – even though that distinction has no grounding in the legislation – and some petitioner challenged a hypothetical by-law such as this, I also would think there is no room for intervention. The very exercise of the authority granted it, as well as its method of exercising it within the zone of proportionality, are up to the Municipality.
  8. In the Bremer  case, there was no doubt that the by-law did not permit opening businesses on the Sabbath. I thus ruled in that case that the Municipality should work to ensure that businesses are closed on the Sabbath, and if the character of the city justifies, in its opinion, permitting certain businesses to be open on the Sabbath, the Municipality should change the by-law. That was – as I noted (see above, para. 49 [para. 48-trans.]) – not to make a value judgement regarding the desired character of the Sabbath, but rather as an expression of the view that laws, including the By-Law, should be followed. Those words also apply to the case at hand. My ruling does not seek to express a “secular” or “religious” view. My verdict reflects what, in my mind, is the correct interpretation of the law, as I explained at length.

 

The President

Justice Y. Danziger

With complete concurrence, I join the comprehensive judgment of my colleague the President.

At the heart of the matter – the question of the Sabbath. How it should be treated and how it should be observed. This question is a question of values, and the answer will vary depending on the identity of the respondent. Recognition of that fact of course supports the conclusion that the discretion to determine the appropriate balance concerning the Sabbath should not be exercised generally, “at the national level”, but rather in a more focused and considerate way, for each urban space, keeping in mind the difference and diversity among the populations that comprise the various cities. This approach facilitates optimal expression of the character and uniqueness of the cities and their residents. It facilitates maximal expression of the free wills and autonomies of the residents. The appropriate perspective, as my colleague the President expressed well, is the perspective of “live and let live”. In a society composed of a complex human mosaic, this perspective is necessary and essential. It is the cornerstone of successful communal life. In this sense, as noted, it is hard to give priority to a value judgment at the “national” level, which is inherently more general and less pluralistic, at the expense of a narrower judgement, aimed at the local character only. In addition, it should be noted that the Sabbath is not a singular thing. There is no one correct way to observe it. It can be done this way and that way. In that context, I am concerned that the dichotomous division between one who “observes” the Sabbath and one who “violates” it oversimplifies the reality and its complexity. This is especially so regarding the concern that the Minister of Interior expressed, that the national religious look and character of the Sabbath will be changed in one fell swoop, and in place of the “national agreement” about it, there will be one big confusing mess. As noted, this concern assumes, in theory, that there is one correct “national way” to observe the Sabbath, which is not the case.

 

                                                                                                                                                Justice

 

Justice Y. Amit

  1. I concur with the precise and exhaustive judgment of my colleague, the President.

For years, the conduct of the executive branch indicated that, in effect, it had decided not to decide regarding the validity of the amendment to the By-Law. As noted in the President’s judgment, that conduct should be viewed as an unexplained refusal which does not withstand judicial review. I also share the President’s opinion regarding the relevance of the Hours of Work and Rest Law, 5711-1951, because there are different purposes at the foundation of the two laws, and “the division of labor is as follows: the Hours of Work and Rest Law regulates the Jewish worker’s rest on the Sabbath, while the by-laws address the question of opening (or closing) the businesses themselves” (Gidon Sapir, “’Vikaratem Lashabat Oneg?’ Avoda Mis-char Vibilui Bishabat Biyisrael Mekom Hamidinia Viad Hayom [‘And Call the Sabbath a Delight?’ Work, Commerce and Leisure on the Sabbath in Israel from the Founding of the State to the Present]”, 31 Mehkarei Mishpat 169, 182 (2017); hereinafter: Sapir). Similarly, I don’t think there was a flaw in the discretion of the Municipality, which chose to legislate a balanced arrangement within the zone of proportionality.

  1. The decision to grant a further hearing was also based on the honored status of the Sabbath “in the world of Judaism”, and, I would add, the honored status of the discussion of the Sabbath’s character in Israeli society. Given the importance of the issue, I will address it briefly.

I completely agree with the President that “The Minister of Interior’s position did not appropriately consider the uniquely autonomous status of the Municipality (para. 27 [para. 26-trans.] of her verdict). Indeed, the present case exemplifies the clash between the central government and the local government. The relationship between these governments is complex, and this is not the place to exhaust the discussion (for an expansion, see: Nehamia Avneri, Mishpat Hamakom: Shilton Atzmi Mekomi Vichakika Mekomit [The Law of the Land: Local Self Rule and Local Legislation], 23-58 (2013) (hereinafter: Avneri); Shalom Zinger, Dinei Shilton Mekomi: Hoveh Viatid [The Law of Local Government: Present and Future], 121-147 (2013) (hereinafter: Zinger); Yisachar Rosen-Zvi, “’Makom Hatsedek’: Mishpat Hashilton Hamekomi Vi-i-Tsedek Chevrati” [’The Place of Justice’: The Law of Local Government and Social Injustice]”, 28 Iyunei Mishpat 417 (5766-5767)). To avoid getting off scot-free, I will add a few words about the status of local government in the context of multi-culturalism, shaping the public sphere and the relationship between religion and state. I will note that I address these issues from a broad perspective and therefore will not address the legal distinctions between a municipality and a local council.

  1. There are two discernable principled perspectives regarding the status of the local government, and for our purposes we will make do with the succinct description that Justice Folgelman provided in HCJ 4790/14 Yahadut Hatorah v. Minister of Religious Services [unpublished] (October 19, 2104) (references deleted):

"The administrative perspective views the local government as part of the central government. On this view, the central government is the source of authority for the local government, and the central government has supervisory powers over and the power to intervene in the local government. This position sometimes expresses a paternalistic view of the local government as pertains to its relationship with the central government. It views the local government as one who is dependent on the [national-trans.] government or as an arm of the central government; 'a contractor' that plays a role for another governmental body, subject to its instructions and under its supervision [...] in contrast to this perspective, there is another perspective regarding the local government -- the autonomous perspective. In contrast to its predecessor, this perspective considers the local government to have independence from the central government [...] It is based on the opinion that the local government is a body of independent-democratic rule that represents the interests of the local residents. It views the local government as a tool for realizing communal-cultural values regarding different issues, meaning: an institution whose role is to facilitate members of the community running their ‘internal’ affairs without intrusion from the state, while preserving the ability of the communities to control their public space and to translate the preferences of their members into public policy [...]

Throughout the years, various approaches have been expressed in the case law (in various contexts) regarding the above-mentioned perspectives, to the point where some said that the law of local government 'is swinging like a pendulum' between two opposing perspectives on local government [...]"

 

To continue the image of the pendulum, I note, by the way, that I doubt if the legislative branch and the executive branch invest sufficient efforts to improving the organizational and legal framework within which local government agencies operate. Over the years, commissions have been established, experts have invested time and effort, but a significant portion of the reports on the subject have not been implemented. It is particularly worth nothing the report of the Governmental Commission on Local Government Affairs (Zinbar Commission), which was approved by the government as far back as 1985 but was neglected. In addition, the Municipalities Bill, which was proposed by the government and put before the Knesset for consideration in 2007, was not promoted (for academic writing on the bill, see the publication Chukim, which devoted its first issue to the subject, and also Ron Shapira’s article, “Hirhurim Al Hatzaat Chok Iriot Chadash [Reflections on the New Municipalities Bill]”, 7 Din Vidvarim 677 (2012)).

  1. In any event, the Israeli legal system recognizes the autonomy of local governments to act within the framework of their lawful authority. In our case, the authorization is unambiguous: The Law to Amend the Municipalities Ordinance (No. 40), 5751-1990 (known as the Authorizing Law) authorizes the municipality to design the local legal arrangements for opening places of business on the Sabbath. This means that for this sensitive issue, the legislator chose to transfer the authority to the local government, which acts according to its considerations and commensurate with the character of the residents and the place (see paras. 26-29 [25-28-trans.] of the President’s opinion). This starting point is in large part also the ending point that dictates denying the motion. I chose to go beyond that only in order to expand the view-point and to highlight the fact that the Authorizing Law is just one branch of the branches of a broader principle, which is expressed in legislation, case law and the legal literature.
  2. Legislation: The most prominent example of the legislator’s consideration of the local character is the Authorizing Law that is the subject of our discussion, but additional laws regarding the relationship between religion and state contain a similar discernable trend. The prohibition on selling pork was left to the discretion of the local authorities (Local Authorities Law (Special Authorization), 5717-1956), as was the opening of places of entertainment on Tisha Ba’av (Law Prohibiting Opening Places of Entertainment on Tisha Ba’av (Special Authorization), 5758-1997). The prohibition on openly displaying leavened products on Passover does not apply in a town where a majority of residents are not Jewish (art. 2 of the Law of the Holiday of Matzot (Prohibitions on Leavened Products), 5747-1986), and the prohibition on raising swine excludes a number of local authorities enumerated in the schedule of the Law Prohibiting Raising Swine, 5722-1962. From an additional perspective, the Law of Jewish Religious Services [Integrated Version], 5731-1971 regulates religious services by establishing local religious councils, and the local authority’s council significantly influences the appointment of the council’s members (art. 2 of the law; See also art. 6A) and also influences the appointment of the municipal rabbi (Amendment 7 of the Jewish Religious Services Regulations (Elections of Municipal Rabbis), 5768-2007).
  3. Case Law: The President’s opinion cited judgments that emphasized the important of creating local arrangements regarding opening and closing businesses on the Sabbath, as well as in the context of selling pork and its products, according to the legislation cited above. I can add statements that have a more general hue. Thus, for example, Justice Cheshin emphasized in HCJ 6741/99 Yekutieli v. Minister of Interior, 55(3) PD 673, 705 (2001): “Unlike the state, whose policy is inherently state-wide, a local authority is authorized and required to focus itself – subject to specific exceptions enumerated in law – on its own domain only, and its policy must express local interests of the authority and its residents. A local authority is supposed to take care of its community – not the entire community of the state – and its policy must adapt itself to the community as a whole living within the authority’s domain”.

In another matter, Justice Cheshin directly addressed the provision of religious services by the local authority:

“Even though religion – doctrinally – knows no boundaries of place or time, religious services have a local character and are supposed to adapt themselves to the specific needs of the residents of this or that local authority […] The demands for Jewish religious services, while sharing a common denominator, vary in their points of emphasis from community to community; the demands for religious needs can be heterogeneous and dependent on worldview” (HCJ 4247/97 Meretz Party in Jerusalem City Council v. Minister of Religious Affairs, 52(5) PD 241, 253 (1998)).

Prior to the above words came comments by Justice Alon, who expressed himself in this spirit: “Local authority elections give expression, first and foremost, to the will of the residents of that authority regarding the municipal issues of that place, and the religious services provided by the religious council constitute a substantial part of these municipal needs” (HCJ 121/86 Shas Party v. Minister of Religious Affairs, 40(3) PD 462, 466 (1986).

Justice Dorner’s words in HCJ 2838/95 Greenberg v. Katzrin Local Authority, 53(1) PD 18 (1997) (dissenting opinion regarding the result):

“Referring the handling of local issues to the local authorities is based on the view that it is better for local issues to be regulated according to the conditions of each place and its needs. The appropriate solution for a particular problem in a particular town does not necessary fit another town. The local authority has a relative advantage over the central government in handling local issues. Additionally, for considerations of democracy, local issues should be managed according to the will and aspirations of the residents of the place, and by their elected officials.”

  1. The literature and academic writing of legal scholars also include expressions of recognition of the special status of the local authority, and I will cite a few of the sources relevant to our issue.  Professor Itzhak Zamir thought that the special status of the local authority is even expressed in the context of primary arrangements. He said: “It is one thing to grant authority for setting primary arrangements to a local authority, such as a municipality, which is a democratic body directly responsible to the residents. Democracy, even micro-level democracy, deserves sweeping authority to serve the residents according to the policy it set. It is another thing to grant such authority to a minister or another administrative agency” (Itzhak Zamir, “Hasamchut Haminhalit [Administrative Authority]”, 81(a) Mishpat Umimshal 103 (1992); See also Itzhak Zamir, Hasamchut Haminhalit [Administrative Authority], Vol. 1 446-457 (2nd ed. 2010)).

Prof. Menachem Maunter addressed this issue in the framework of a discussion of the State of Israel as a multi-cultural state. According to his approach, the solution for disagreement stemming from different cultural groupings is to implement the principle of decentralization. As he wrote:

“Decentralization needs to be an important principle in the life of a multi-cultural state. The citizens of such as state should get used to the perspective that the state is not supposed to comprehensively realize their normative viewpoints within the context of its uniform arrangements. Instead, citizens of a multi-cultural state should expect to realize their normative viewpoints comprehensively at the sub-state level, namely: at the municipal level, within cultural communities, in associations […] to say it another way, citizens of a multi-cultural state need to get used to the recognition that only some of the normative arrangements that apply to them will be uniform, while others will be differential – they will apply only to some citizens” (Menachem Mautner, Mishpat Vitarbut Biyisrael Bifetach Hameia Hesrim Viachat [Law and Culture in Israel at the Turn of the Twenty-First Century] 322 (2008)).

Mautner went on to specifically address realizing the principle of decentralization as concerns the public character of the Sabbath in Israel. In light of the definition of Israel as a Jewish state, the Sabbath was established as the official day of rest, but regarding the specific content that is to be expressed in the public sphere, Mautner supports a solution that allows different communities to design arrangements that suit the character of the place, so long as they don’t severely infringe on those whose culture and beliefs differ (ibid, pps. 326-327; Compare Sapir’s suggestion on page 223, that primary legislation can regulate the issue at the national level, together with authorizing local authorities to make changes via a special majority; See also the draft Sabbath Law, 5776-2016). It is worth mentioning Mautner’s comment that the response to the disadvantages of the principle of decentralization is developing social solidarity and emphasizing the common good (ibid, p. 331 and thereafter; for more on trends and challenges of decentralization see, Ishai Blank, “Mikomo Shel Ha’mekomi’: Mishpat Hashilton Hamekomi, Bizur Vi-I Shivyon Merchavi Biyisrael [The Place of the ‘Local’: the Law of Local Government, Decentralization and Spatial Inequality in Israel”, 34 Mishpatim 197 (5764-5765); Ishai Blank, “Mamlachtiut Mivuzeret: Shilton Mekomi, Heipardut Vi-i-Shivyon Bichinuch Hatzibori [Decentralized Statehood: Local Government, Secession and Inequality in Public Education]”, 28(2) Iyunei Mishpat 347 (2004); Ishai Blank, “Kihila, Merchav, Subyekt – Tezot Al Mishpat Umerchav Biakvut Sifro Shel Yisachar (Isi) Rosen-Zvi [Community, Space, Subject - Theories on Law and Space Following Yisachar (Isi) Rosen-Zvi’s Book]”, 2 Din Udvarim 19 (5767)).

As part of Prof. Ruth Gavison’s attempts to find a remedy for the perpetual tension in the relationship between religion and state in Israel, she also addressed questions related to the character of public life. Prof. Gavison expressed regret that “these battles are waged using such dogmatic language, and they deteriorate into a threat against the rule of law and the legitimacy of the institutions authorized to make communal decisions in our society. That stems from, inter alia, the breakdown of mechanisms for negotiation and compromise”. She later emphasized that “Some of the coercion stemming from enforcing a particular public character can be minimized using spatial limitations”, and as an example she mentioned activities in the public sphere on the Sabbath (Ruth Gavison, “Medina Yehudit Videmokratit: Etgarim Visikunim [Jewish and Democratic State: Challenges and Risks]”, Rav-Tarbutiut Bimidina Demokratit Viyehudit [Multi-culturalism in a Democratic and Jewish State] 213, 258-259 (eds.: Menachem Mautner, Avi Sagi and Ronen Shamir; 1998)). Indeed, he who ignores the difference between the population of Ramat Gan and the population of Bnei Brak, or between Jerusalem and Tel Aviv, and seeks a uniform, rigid solution, will find himself forcing an inappropriate social arrangement in a broad manner. The differences are not just between cities. Within the same city, there are differences between neighborhoods and between areas, and the local authority is tasked with these distinctions. The variations and differences at the municipal level are not just at the geographical-territorial level but also along the axis of time. What was right for yesterday is not necessary right for today, creating a need to allow the local authority, which has its “finger on the pulse”, the flexibility it needs. We need not go far back to see that “the city of Tel Aviv at that time was a single house on the seashore” but now Tel Aviv is a vibrant and bustling city, a city that never stops, and its character in the 2000’s is not the same as its character decades ago.

  1. Following our minor digression, we get back on track and point to the targeted conclusion: Israeli law recognizes the autonomy granted the local government to exercise its lawful authority, commensurate with the nature of its residents and the local character. Indeed, “Regarding the source of authority, according to the principle of administrative rule of law [intra vires-trans.] […] the local authorities are subject to the favor of the governmental branch (legislative or executive) which grants them the power to act. On the other hand, regarding the content of the authority, the various authorizing statutory provisions grant the local authority powers with a generous hand” (Avneri, p. 91; emphasis in original). That is the general principle, and for the specific issues of religion and state it has advantages that cannot be disregarded: creating a public sphere that suits the character of the surroundings and the way of life of the residents of the place, as well as minimizing coercion of different cultural populations. However, it is not a silver bullet, and the principle should be implemented with caution and sensitivity.

Similarly, the autonomy granted the local authority is not, of course, absolute. The various legislative provisions detail the powers of the central governmental agencies to supervise and intervene. Inter alia, legislating by-laws is subject to the authority of the Minister of Interior pursuant to Article 258 of the Municipalities Ordinance [New Version]. In the current case, we need not exhaust the discussion of the boundaries of the local authority’s autonomy or the limits of the power of the Minister of Interior to intervene in the content of a city’s by-law (on this, see para. 26 [para. 25-trans.] of the President’s opinion, and compare: HCJ 58/53 Haviz v. Haifa Municipality, 7 PD 701, 713 (1953); HCJ 6249/96 Association of Contractors and Builders in Israel v. Mayor of Holon, 52(2) PD 43, 47 (1998); HCJ 7186/06 Malinovsky v. Holon Municipality [unpublished], paras. 57-62 (December 29, 2009); HCJ 1756/10 Holon Municipality v. Minister of Interior [unpublished], especially para. 41 (January 2, 2013); Avneri, pps. 78-84; Zinger, p. 211).

In my opinion, to extrapolate, we can say that the scope of the legitimate intervention of the Minister of Interior (or another agency of the central government) is inversely proportional to the scope of the discretion granted the local authority, pursuant to the authorizing law and its purpose (compare: HCJ 953/01 Solodkin v. Beit Shemesh Municipality, 58(5) PD 595, 621 (2004)). In our case, the legislator authorized the local authority to act according to its discretion, which requires, as noted, adapting to the character of the residents and the place. The Tel Aviv City Council did the work of designing a measured and balanced arrangement that expresses observance of the character of the Sabbath in the public sphere along with considering the daily needs of a respectable portion of city residents.

In contrast, the Gavison-Medan Contract contained an agreement for a general prohibition on commercial activity on the Sabbath, but suggested allowing limited activity for small grocery shops (Yoav Artsiali, Amanat Gavison-Medan: Ikarim Viekronot [Gavison-Medan Contract: Essences and Principles] 40 (Israel Democracy Institute; 5763)).

Before concluding I note that in light of the special status of the Sabbath in the State of Israel and against the background of the distinction between the local level and the central government, I did not see fit to evaluate what has been done in this area in foreign countries. In that context, I will briefly say that the arrangement that the Municipality of Tel Aviv set is moderate compared with the global trend toward limiting restrictions on commercial activity on days of rest (see Tomer Yahud and Ariel Finkelstein, “Chukei Hamischar Vihavoda Biyom Hamenucha Bimidinot Haolam: Mechkar Hashvaati [Law of Commerce and Labor on the Day of Rest Throughout the World: A Comparative Study]” (Institute for Zionist Strategies; July 2016).

  1. Conclusion: Regarding the petition before us, I concur with the President’s opinion.

 

Justice

 

Justice N. Hendel

  1. Again, the Sabbath. The queen for whom the State of Israel forces the court to define the boundaries of her kingdom.

The current procedure raises for further hearing the question of the lawfulness of two amendments to the By-Law of Tel Aviv-Jaffa (Opening and Closing Shops), 5730-1980, K.T. 745, 1448 (hereinafter: the By-Law), which moderate and abridge the scope of the prohibition that the By-Law had imposed in the past on opening businesses on the Sabbath and Jewish holidays. The first one - By-Law of Tel Aviv-Jaffa (Opening and Closing Shops) (Amendment), 5775-2015, K.T. H.S.M. 358 (hereinafter: the First Amendment) – permits the opening of “convenience shops” in gas stations and other shops – “including any office, commercial establishment, kiosk […] public entertainment, workshop or factory” at three defined sites within the city. Similarly, the First Amendment significantly reduces the restrictions on the format for operating coffee shops, a term that includes also “restaurant, bar, a shop selling ice cream or any other food establishment” and pharmacies throughout the city. An additional element of the amendment – the authority to grant a permit to open grocery stores on the Sabbath and Jewish holidays on certain streets – was invalidated by then-Minister of Interior Gidon Saar. In addition to the argument that it essentially authorized activities of businesses “that for years trampled upon the By-Law with a heavy boot” and was not an arrangement based on relevant criteria, the invalidation was explained by reference to the disproportional infringement that opening the grocery stores via the proposed framework would cause to “the value of the Sabbath as the general day of rest in the State of Israel”.

Following the invalidation of this aspect of the First Amendment, the Tel Aviv-Jaffa City Council approved the second amendment – that is the Tel Aviv-Jaffa By-Law (Opening and Closing Shops) (Amendment), 5777-2017, K.T. H (hereinafter: the Second Amendment). Like its predecessor, this amendment authorized the mayor to grant permits to open grocery stores on the Sabbath and Jewish holidays. However, the framework proposed in the Second Amendment is more detailed, grounded and proportional in a number of ways: first, it limits the size and character of the grocery stores – and clarifies that permits can be issued only to kiosks or businesses used for “selling food and consumer items for personal or household use, that do not include handling the food, including food delivery”, whose size does not exceed 500 square meters. The second amendment limits the number of permits and subjects the authority of the mayor to a maximum “regional quota”. The starting point for calculating that quota is 15% “of the number of units used for transacting in food in that same area during all the days of the week.” In addition, the amendment gives clear priority to opening grocery stores located in central areas that are noisy anyway, while minimizing the infringement on the character of the Sabbath in residential areas, and it outlines clear and egalitarian criteria for allocating permits, in order to avoid rewarding lawbreakers.

The Second Amendment was also brought to the approval of then-Minister of Interior Gidon Saar, who noted its relatively limited nature, compared with its predecessor. However, the minister saw fit to clarify certain aspects of the amendment -- the criteria for granting permits and the scope of discretion allowing the authority in the future to expand the quota for permits. The minister therefore ordered the publication of the Second Amendment in Reshumot to be delayed, pursuant to his authority under art. 258(c) of the Municipalities Ordinance [New Version], and left the final decision on the issue to his successor. However, the successor failed to make a decision, his authority - which at a certain point was transferred to the Israeli government - was later restored to the current Minister of Interior, Aryeh Deri, but still the decision was delayed. With the continued silence of the Minister of Interior and the government as background, the verdict that is the subject of the further hearing was rendered, in which this court (President M. Naor and Justices E. Hayut and D. Barak-Erez) rejected the petitioners' claims in HCJ 6322/14 and HCJ 996/15 [unpublished] (hereinafter: Association of Merchants), accepted the Tel Aviv Municipality's petition (HCJ 4558/15) [unpublished] regarding the Second Amendment, and authorized the two amendments to the By-Law (hereinafter: the verdict). At first, it was held that the failure, over a long period of time, to make a final decision on the fate of the amendment -- deviating from the deadlines set out in the Municipalities Ordinance – was a violation of the general obligation to act with due diligence, and ignoring the agreements reached during the litigation was essentially "an unexplained decision to invalidate Amendment No. 2” (para. 18 [para. 17-trans.] of President M. Naor’s judgment). The burden of proving the lawfulness of the decision therefore passed to the state – which did not meet it and did not present any reason for invalidating the Second Amendment.

Regarding the substantive merits of the Association of Merchants’ arguments, it was held that the Law Amending the Municipalities Ordinance (No. 40), 5751-1990, S.H. 1336, 34 (hereinafter: the Authorizing Law) explicitly authorizes the local authorities to regulate the opening and closing of businesses on the Sabbath and Jewish holidays – and that the amendments do not contradict the provisions of the Hours of Work and Rest Law, 5721-1951, because the latter “concerns the regulation of individual labor relations internal to the place of business. In contrast, the amendments to the By-Law regulate the activities of businesses without reference to the identity of the employee”. Regarding the issue of discretion, it was held that the amendments are within the zone of proportionality and fulfill the purposes of the Authorizing Law – conducting a balance between the conflicting rights, according to the unique characteristics of each local authority. The petitioner’s arguments in HCJ 2998/15 [unpublished], seeking to expand the list of sites where the First Amendment allowed shops to open, were also rejected.

The Association of Merchants, which was dissatisfied with the result, filed a motion for a further hearing in which it repeated, inter alia, the argument that the amendments to the By-Law are contrary to the Hours of Work and Rest Law which, it claimed, prohibits the very existence of commerce on the Sabbath. Furthermore, the Association of Merchants found that, although it was not brought to the court’s attention in real time, the Minister of Interior, as early as April 9, 2017 – ten days before the verdict was rendered – signed a letter intended to be sent to the mayor of Tel Aviv-Jaffa, containing a reasoned decision regarding the invalidation of the second amendment (hereinafter: the reasoned decision). Under these circumstances, and considering the substantive ramifications of the verdict on Israeli society as a whole, the Association thought that the position of the minister should not be ignored, and his reasons should be evaluated before invalidating the decision. The Minister of Interior shared this position, and the state supported holding a further hearing on the question of the relationship between the Hours of Work and Rest Law and the Authorizing Law – although, on the substance of the matter, it accepted what was decided in the verdict on this issue. On July 12, 2017 Deputy President (ret.) E. Rubinstein granted the Association of Merchant’s motion, and decided that “the further hearing will apply to the entire verdict”. Hence the hearing before us.

  1. Before getting into the heart of the issue, as a preliminary matter, I will outline general contours for the image of the Sabbath, about which – as the Babylonian Talmud relates – the Holy One Blessed Be He said to Moses our rabbi, the most revered of prophets:

“I have a precious gift in My treasure house, called the Sabbath, and desire to give it to Israel; go and inform them” (Babylonian, Shabbath, 10a).

This “present” occupies a central place in the world of Judaism – and found a place of honor in the Ten Commandments, on the seam-line between the fundamental commandments that concern the relationship between a person and God, and those that are among people. The Sabbath carries a double normative duality. First – the universal as opposed to the particular. The world as opposed to the Jewish people. The holy scriptures contain a distinction between the “Genesis Sabbath” and the “Jewish Sabbath”. In this sense, the Sabbath has undergone permutations. At the conclusion of the story of creation in the chapter Genesis, the Sabbath is presented as “the crown of creation” – “God blessed the seventh day and made it holy because on it he ceased all the work that he had been doing in creation” (Genesis 2:3). Ibn Ezra clarifies that “doing” means that humankind continues the doing, starting on the eighth day. Construction of the physical world hence concluded in six days, but from a moral point of view, the world is not yet complete. The Sabbath is the mediator between the creation of the physical world and the creation of humankind, responsible for continuing its spiritual construction (see the comments of the Rabbinical Judge Dr. Isidor Grunfeld on the book “Horeb” of Rash”ar Hirsch [Samson Raphael Hirsch, Horeb: A Philosophy of Jewish Laws and Observances, Volume I, 273 (the Soncino Press, 1962)].

The second stage in the development of the Sabbath is the obligation to “keep and remember” that was imposed on the Jew in relation to the Sabbath day. As was written in the Ten Commandments in the Book of Exodus –

“Remember the Sabbath day to set it apart as holy. For six days you may labor and do all your work, but the seventh day is a Sabbath to the Lord your God; on it you shall not do any work, you, or your son, or your daughter, or your male servant, or your female servant, or your cattle, or the resident foreigner who is in your gates. For in six days the Lord made the heavens and the earth and the sea and all that is in them, and he rested on the seventh day; therefore the Lord blessed the Sabbath day and set it apart as holy” (Exodus 20:8-11).

The Sabbath therefore has a complex and multi-faceted nature. Indeed, the Sabbath prayers and blessing over the wine mention the universal aspect (“in memory of the act of creation”) as well as the Jewish historical aspect (“in memory of the exodus from Egypt”).

There is an additional duality. On the one hand, the Sabbath is a commandment concerning the relationship between people and God, but simultaneously it is also a commandment concerning the relationship among people. More precisely, between a person and his society. The aspiration is to create a different society. A society of equality and rest. The Sabbath is supposed to be the religious experience that brings a person closer to his creator, and also a social experience that topples societal boundaries and brings a person closer to himself. We should pay attention to what the Book of Exodus commands – that all of us should rest on the Sabbath: the landlord, the citizen and the foreigner, and even the slave (at the time this concept existed) and the domestic animal. Jewish law even recognizes the concept of the “resting of utensils” (See Babylonian Talmud, Shabbath, 18b). Such is the Sabbath – a diverse, multi-purpose and multidimensional creature.

The Sabbath contains a national-particularistic aspect, in which it is presented as a kind of symbolic and perpetual reminder of the extraordinary relationship between God and his people – a relationship that has a constitutive expression in the exodus from slavery in Egypt to spiritual liberation and receiving the Bible. In this sense, the Sabbath expresses the national uniqueness and spiritual uniqueness of the Jewish people: “It is a sign between Me and you for your generations, to know that I, the Lord, made you holy […] Thus shall the children of Israel observe the Sabbath, to make the Sabbath throughout their generations as an everlasting covenant. Between Me and the children of Israel, it is forever a sign” (Exodus, 31:13-17). In parallel, but in harmony, the image of the Sabbath – as it is portrayed in the Ten Commandments of the Book of Exodus (20:8-11) and in the Book of Deuteronomy (5:12-15) – also expresses a universal human experience of exodus from slavery to freedom. It puts the social aspect in center-stage and calls for the learning of lessons from past experiences, internalizing the value of a day of rest that momentarily blurs the gaps between social classes – “in order that your manservant and your maidservant may rest like you”.

Given the many layers and meanings of the Sabbath, it is no wonder that, even when other traditions found themselves tossed about in the winds of change or bowing under the burden of new and challenging world views, the Jewish public maintained broad agreement regarding its importance. On this point, we recall the famous words of Asher Ginsberg, “Ahad Ha’am”:

“One need not be Zionist or scrupulous about religious commandments in order to recognize the value of the Sabbath […] we can say without exaggeration that more than the Jewish people kept the Sabbath, the Sabbath kept them. Had it not reshaped their ‘soul’ to them and rejuvenated their spiritual life each week, the hardships of the ‘days of action’ would have pulled them further and further down, until they would have finally descendent to the lowest storey of materialism and moral and intellectual nadir. Therefore one definitely need not be Zionist to feel the glory of the historical holiness that surrounds this ‘good gift’” (Ahad Ha’am, Al Parshat Drachim [At a Crossroads], Vol. 3, Chap. 30; emphasis added).

Haim Nahman Bialik, a graduate of the Volozhin Yeshiva and the national poet, also noted, in that spirit, that “without the Sabbath, there is no image of God and no image of humankind in the world. If work were an end in itself, there would be no difference between human and beast […] the Sabbath is culture” (Letters of Haim Nahman Bialik, Vol. 5, 228 (Fishel Lachower, ed., 5699)).

These perspectives quickly became entrenched in the law of the young State of Israel. As early as June 9, 1948 – less than a year after the establishment of the state – the official newspaper published the Days of Rest Ordinance, 5708-1948, which declared the Sabbath, together with Jewish holidays, to be “the fixed days of rest in the State of Israel”. The Work and Rest Hours Law, 5711-1951 granted the Sabbath a more substantial and tangible status, determining that “the weekly rest will include […] for Jews, the Sabbath Day.” These provisions, on whose details I will expand below, express the diverse purposes that allow even a person who is not religious to recognize the importance of the Sabbath. As Justice A. Barak noted a decade ago:

 

And Justice Barak wrote in the Horev case (HCJ 5016/96 Horev v. Minister of Transportation, 51(4) PD 1, para. 55 of his opinion (1997) –

“Sabbath observance is a central value in Judaism. The fourth of the Ten Commandments, the Sabbath constitutes an original and significant Jewish contribution to the culture of mankind. See 31 The Jewish Encyclopedia, [107], under The Sabbath, at 422.  It is a cornerstone of the Jewish tradition and a symbol, an expression of the Jewish message and the character of the Jewish people. Deprive Judaism of the Sabbath, and you have deprived it of its soul, for the Sabbath comprises the very essence of the Judaism’s nature. Over the generations, throughout its blood-soaked history, our nation has sacrificed many of its children in the name of the Sabbath”.

However, we cannot ignore the Israeli reality – which accords the Sabbath a character that is not necessarily compatible with the Jewish law conception over the generations. The delight of the Sabbath in Bnei Brak and Safed is not like the delight of the Sabbath of citizens who take advantage of their vacation day for a walk in the bosom of Israeli nature, a visit to football fields or museums – often with a fascinating integration of the traditional “blessing over the wine” – or “just” for rejuvenation. At the heart of the issue is a deep and profound ideological dispute, which is at the center of a prolonged public discourse that has reached this court on more than one occasion. I personally think that, given the respect with which we should treat each other’s world view – Sabbath view – we would do well to avoid a binary determination and rather shape the public space by way of compromise. We should give expression to the traditional view of the Sabbath, to which I subscribe, without pushing aside a significant segment of the population whose view of the Sabbath – as a national symbol and as a social symbol – differs. And what a good example we have before us. Israeli law does not impose on an individual the Jewish law prohibition against working on the Sabbath. It focuses on his right to rest from everyday troubles. It is no accident that the term day of rest relies on the commandment, “in order that your manservant and your maidservant may rest like you”. That is out of recognition that the Sabbath is the day of rest of the Jewish people in its country. This sensitivity to the worker, to the individual, integrates the universal with the particular; the history of the nation with the needs of the individual and safeguarding his human dignity. Indeed, the Sabbath is a secret gift that reveals a new face in every generation.

  1. I now state that I cannot concur with the position of my colleague, President M. Naor. Were my opinion to prevail, we would rule that the motion for a further hearing should be granted, in the sense of invalidating the Second Amendment, because the reasoned decision of the Minister of Interior on this issue does not deviate from the zone of reasonableness.

Indeed, the decision was made with great delay, blatantly violating the obligation of the administrative agency to exercise its authority with appropriate speed, according to Article 11 of the Law of Interpretation, 5741-1981, and according to the agreements reached during the previous proceeding. Furthermore, the Minister of Interior kept quiet and refrained from informing this court – through the Attorney General – about the substantive change in the state of affairs due to his signing the decision to invalidate the Second Amendment. However, as serious as his conduct may be, when it became clear that at the time the verdict was reached, there was a reasoned decision to invalidate the Second Amendment, we are not at liberty to ignore it and to shift the burden from the Tel Aviv Municipality – which petitioned against it – to the state. Indeed, art. 258(d)(2) of the Municipalities Ordinance authorizes the Minister of Interior “to invalidate a by-law for reasons he will provide”. The obligation to provide reasons, in our case, is therefore grounded in the specific norm that authorizes the minister to invalidate by-laws – and does not derive (only) from the general obligation to provide reasons, which is grounded in Article 2A of the Law to Amend the Organization of Administration (Reasoned Decisions), 5719-1958, or from the obligation of fairness that the administrative agency bears (see Civ App 3886/12 Zeev Sharon Construction and Earth Contracting Ltd. v. VAT Director [unpublished], para. 39 (August 26, 2014)). Therefore, had the reasoned decision not been given in time, we would surmise – in light of the combination of the obligation to provide reasons and the provision of Article 6(b) of Law to Amend the Organization of Administration (Reasoned Decisions), 5719-1958 – that it is insufficient to transfer the burden to the state, and that we should render invalid the decision to invalidate the Second Amendment. However, once the reasons for invalidating the Second Amendment were given (even if not delivered) before the verdict was rendered, the obligation to provide reasons was met, and there is no longer a justification for transferring the burden to the state – not to mention “automatically” invalidating the decision to invalidate.

  1. My colleague President M. Naor reasons that (para. 17 of her opinion) [para. 16- trans.] “the procedure of a further hearing is intended for clarifying a rule that was decided in a verdict, and not for discussing what the verdict does not contain” – and therefore the Minister of Interior’s reasons, which were not presented to the court in the prior proceeding, cannot influence the result of the further hearing. However, even if the Minister of Interior’s reasons were missing, their absence was very “present” – and even played a central, if not determinative, role in the verdict.  The discussion of “what is” in the decision in the previous go-round, namely authorizing the Second Amendment due to the Minister of Interior’s unexplained invalidation, does not allow us to ignore the reasoned decision that came into the world, at the end of the day, before the verdict was rendered. Under these circumstances, we can understand Deputy President E. Rubinstein’s (ret.) approach, which held that a decision bearing such substantial ramifications for the character of the Sabbath in the State of Israel is important enough “to justify further consideration, when all the positions are laid out” (para. 11 of the decision to hold a further hearing). That includes the position of the Minister of Interior, to whom the legislator trusted with broad discretion on the issue.

I will add that even if “the Minister of Interior’s position” was not formally presented in the prior proceeding, its substantive reasons were raised before the court and were even analyzed in the verdict. In his reasoned decision, the minister noted that the Second Amendment undermines the social-societal purpose of the days of rest – violating the rights of Sabbath-observant small business owners and workers to equality, freedom of occupation and freedom of religion (paras. 34-42 of the reasoned decision). That is in addition to the infringement on the national-religious purpose and the status quo, which does not allow for “pure, unadulterated” business activity (ibid, paras. 43-47). In the minister’s view, we can accept limited commercial activity that fills a “critical need” for residents, but the Second Amendment deviates widely from that definition – both because of the number of permits that it seeks to grant, as well as because of the characteristics of the relevant businesses (ibid, paras. 51-56). Given the national implications of approving the Second Amendment – which the Minister of Interior believed, for the above-stated reasons, would open the floodgates and lead to a significant and undesirable change in the character of the Sabbath throughout the State of Israel – “the broad perspective that is the purview of the central government” leads, in his opinion, to the conclusion that this amendment should be invalidated (ibid, paras. 57-59).

A study of the verdict reveals that the precedent it set is also grounded in analysis of the substantive position of the minister, as described above – which was expressed in the proceeding by other litigants (see paras. 5-7 [paras. 4-6-trans.] of President M. Naor’s opinion). That is true regarding the appropriate balance between the conflicting rights and purposes (ibid, paras. 24-28 [paras. 23-27-trans.]; paras. 4-5 of Justice D. Barak-Erez’s opinion) and also regarding the question of the scope of autonomy that is granted to municipal authorities in this context (para. 25 [para. 24-trans.] of President M. Naor’s opinion; para. 3 of Justice D. Barak-Erez’s opinion). Considering that the Minister of Interior’s substantive position was present in the prior proceeding, arguments were argued over it and normative determinations were made about it, I do not see an obstacle to addressing it in the framework of the further hearing – and this time with the formal status as a reasoned decision regarding the fate of the Second Amendment.

In the absence of a procedural obstacle to addressing the merits of the reasoned decision, I do not think that the delay which it was received – without minimizing its severity – justifies ignoring its content. Even if I assume that we could have avoided holding a further hearing in the verdict, once the Deputy President ruled positively on that issue – the very holding of the procedure, on all elements of the verdict, is the departure point requiring the panel to render an opinion. The judges on the panel have a broad spectrum of discretion regarding the result of the further hearing, from accepting it to rejecting it. Having said that, it had already been decided to hold a further hearing. I respect the procedural position of the President, but for the reasons I discussed, that it is not the only possible way to deal with the procedural hurdle that the delayed decision of the Minister of Interior puts before us. Indeed, my view is also that there is meaning – if you will, a limit – to the Minister of Interior’s conduct. Thus, for example, we should not have considered, in this proceeding, the minister’s decision, had it been received after the verdict was rendered.However, once the decision was made and signed before the verdict was rendered, in such a way that it would have been possible to bring it before the court, I am willing to accept the argument that we should not accord decisive weight – certainly not for such a sensitive and loaded issue such as the status of the Sabbath – to the delay in receiving it. We should not minimize the obligation of the administrative agency to act with appropriate speed, but in light of the importance of the issue before us, the flaws in its conduct do not overshadow the reasoned position. Sometimes, the subject of the hearing and its essence affect procedural considerations (compare, only for purposes of analogy, this court’s approach regarding the flexibility we should exercise in applying the rules of procedure to adoption issues; Leave App Fam Mot 2205/09 Jane Doe v. Attorney General, [unpublished], paras. 6-7 of President A. Grunis’s opinion (April 22, 2009)). In any event, once the further hearing was granted, in my opinion, that provides a consideration and a certain guidance in favor of discussing the issue on its merits, even if we are not obligated to do so.

  1. We therefore must decide whether the reasoned decision deviates far enough from the zones of reasonableness and proportionality to justify invalidating it. My colleague President M. Naor answered that question in the affirmative. In her opinion, the Minister of Interior’s position – believing that there should be a sweeping prohibition against opening businesses on the Sabbath that do not fulfill an “essential need” – undermines the purposes of the Authorizing Law and ignores the municipality’s autonomy and the legislator’s intention to create a balanced, compromise arrangement. My view is different. Even though the Minister of Interior could have reached a different result, the result he actually reached does not deviate from the zone of reasonableness. At the root of the disagreement between the President and me is the question of the relationship between the Hours of Work and Rest Law and the Authorization Law – a question that affects the interpretation of the latter and the scope of the discretion of the local authority and the Minister of Interior regarding by-laws that address the opening or closing of businesses on the Sabbath and Jewish holidays.
  2. A study of the relevant provisions of the Hours of Work and Rest Law Law teaches us that it contains two different norms regarding days of rest: the first, also chronologically, prohibits employing salaried employees during their “weekly rest”, which is determined by their religious affiliation –

“7. (a) An employee’s weekly rest shall be not less than thirty-six consecutive hours in the week.

(b) The weekly rest shall include –

(1) in the case of a Jew, the Sabbath day;

(2) in the case of a person other than a Jew the Sabbath day or Sunday or Friday, whichever is ordinarily observed by him as his weekly day of rest.

9. An employee shall not be employed during his weekly rest, unless such employment has been permitted under section 12.

The second level of the obligation of rest, which is of central importance in our case, was added in the Hours of Work and Rest Law (Amendment), 5729-1969, and it imposes an obligation on business owners to stop working on the “fixed days of rest” in the State of Israel. Unlike its predecessor, which established that the weekly rest of a Jewish employee will include the Sabbath day, but left those who are not Jewish a choice regarding their weekly day of rest (see, for example, App Lbr (nat’l) 396/09 Kisselgof – Mayanei Hayeshua Medical Center [unpublished], para. 16 of Justice A. Rabinovich’s opinion and para. 2 of Justice I. Itah’s opinion (November 9, 2010)), this layer creates a different arrangement. It requires that –

“9A (a).  On the prescribed day of rest, within the meaning of the Law and Administration Ordinance, 5708-1948, the owner of a work-shop or industrial undertaking shall not work in his workshop of [sic] undertaking and the owners of a shop shall not do business in his [sic] shop.

[…]

 (c) A non-Jew may – in respect of his workshop, industrial undertaking or shop, situated in the area of a local authority whose non-Jewish inhabitants, according to the determination of that authority, are at least 25 per cent of its total population – observe the prohibitions imposed by this section, at his option, either on the aforesaid days of rest or on his own Sabbath and holydays. The same shall apply in a quarter of a local authority if the area and the proportion - not less than 25 per cent - of the non-Jewish inhabitants of that quarter have been determined for this purpose by that authority.” (emphasis added).

 

  In other words – the rule is that the business owners that Article 9A addresses are not permitted to work or engage in commerce in their businesses on the Sabbath or during Jewish holidays – which are defined, in Article 18A(a) of the Law and Administration Ordinance as “the fixed days of rest in the State of Israel” – irrespective of their personal religious identity. That conclusion derives not just from the text of Article 9A(a) of the law, which is phrased in a sweeping manner, but also from the exception contained in Article 9A(c) of the Hours of Work and Rest Law – according to which a non-Jewish merchant can choose whether to engage in commerce in his shop on the Sabbath if it is located in an area in which a considerable part of the population is not Jewish. Thus when a shop – or workshop – is within a substantially Jewish area, commerce or work is forbidden in that place even if the owner is not Jewish. That is, as noted, in contrast to the arrangement of “the weekly rest” which allows non-Jewish salaried employees to choose their day of rest.

  1. The variation I noted testifies to the deep and substantial difference between the two arrangements that address days of rest. While Article 9 of the Hours of Work and Rest Law focuses on protecting the religious and social rights of the individual employed as a salaried employee – and guarantees him “a weekly rest” – Article 9A includes an additional dimension. In addition to expanding the personal protection, so that it also applies to a business owner who is not an employee, the article attaches significant weight to the public interest in maintaining the unique character of the Sabbath and Jewish holidays. It is concerned not just with guaranteeing individual rights, but also with shaping the character of the Jewish public space during the national days of rest. For that reason, in substantially Jewish areas, even a non-Jewish business owner is required to stop working on the Sabbath and during Jewish holidays – and he cannot freely choose his days of rest. Of course, such a person is also entitled to stop working on the days of rest of his religious community, but he cannot use them to exchange the obligation not to work or engage in commerce on the Sabbath and Jewish holidays – for example, to engage in commerce on the Sabbath and to stop working on Friday or Sunday – even though such an exchange would fully realize the individual social purpose. The emphasis is on “fixed days of rest”, which have a national character, and not on the “weekly rest”, which derives from the individual religious identity of each employee. Opening a shop for commerce in a substantially “Jewish” area is viewed as infringing on the status of the Sabbath in that space, and therefore Article 9A forbids it, irrespective of the religion of the shop owner. An interpretation that ignores the national-public element of Article 9A of the Hours of Work and Rest Law would be hard-pressed to explain negating the right of choice of a non-Jewish shop owner – in contrast to the employee who may freely choose his weekly day of rest – just because of the location of his shop.
  2. The inevitable result of this textual and purposive interpretation is that the prohibition that Article 9A of the Hours of Work and Rest Law imposes on working in a workshop and industrial factory or engaging in commerce in a shop, is not a “gevara” prohibition – meaning a personal prohibition against the business owner working in the place.  Indeed, this element of the law creates a “heftsa” prohעקibition (object-based prohibition on opening the business) [gevara and heftsa are Aramaic terms in Jewish law for prohibitions relating to persons or objects respectively -trans.] – meaning a prohibition on opening industrial factories, workshops or shops in Jewish residential areas on the fixed days of rest – and prevents activity in these businesses irrespective of the worker’s specific religious identity. Not just the owner of the business is not permitted to work in the place, but also his salaried employees – Jews and non-Jews – because otherwise the national-social purpose of the law would be thwarted. It is would be inconceivable for a non-Jewish owner of a shop to be personally barred from engaging in commerce in a shop located in a substantially Jewish space, but for his non-Jewish salaried employees to be permitted to take his place – even though the influence on the public space would be identical.

According to the interpretive picture sketched here, the relevant provisions of the Hours of Work and Rest Law can be described as having three focal points: worker; business owner; and the business itself. Article 9 of the law focuses on the worker and prohibits his employment during the weekly days of rest that derive from his religious identity. In contrast, Article 9A of the law regulates the obligation to rest in relation to the two additional focal points and requires the business owner (who fits the categories enumerated in the article, which I will discuss below) as well as the business itself to stop working during the fixed days of rest in the State of Israel, namely the Sabbath and Jewish holidays.

  1. Having said that, the prohibition relating to the third focal point mentioned – opening businesses on fixed days of rest – is not absolute, and does not apply to all business activity. As President M. Shamgar clarified in HCJ 5073/91 Israel Theaters Ltd. v. Netanya Municipality, 57(3) PD 192, 207 (1993), “the above-stated law does not include a general provision regarding closing places on days of rest”. Instead –

“In establishing the principle of observing a weekly day of rest and designating it on the Sabbath, the legislator sought to achieve two integrated goals: first, a social goal, that a weekly day of rest should be designated for each person to rest from his work, spend time with his family or in the company of friends and have time for holiday and entertainment, according to his choices and preferences” (ibid, 207-208, emphasis added).

Consistent with President Shamgar’s analysis, we should strictly interpret the prohibition in Article 9A of the Hours of Work and Rest Law, to apply not just to activity of an industrial nature (work in a “workshop” or “industrial factory”) or commerce. In contrast, closing businesses used for holiday, recreation or entertainment would betray one of the primary goals that the legislator sought to promote and would place workers in a Catch 22: they would indeed get to rest from their work on the Sabbath, but they would not be able to engage in the holiday and entertainment they prefer. Therefore, according to both the text of Article 9A as well as its purposive interpretation, the article seeks to impose a limited prohibition on engaging in industry and commerce. Opening and operating restaurants, coffee shops, theaters or cinemas – as well as additional institutions that contemporary Israeli society considers to be places of recreation – is therefore not prohibited in itself; indeed, according to this perspective, I may help realize the purpose that the legislator pursued in setting days of rest (See and contrast Crim Case (Jerusalem Magistrate) 3471/87 State of Israel v. Kaplan [unpublished] (2) PM 26 5748 (1987), para. 4G).

Furthermore, for the reasons I stated, we should be cautious in interpreting the terms “will engage in commerce” and “shop”. A furniture shop is different from a stand offering passers-by ready-made food, and a multi-faceted shopping center is different from a “convenience store” offering clients of a gas station incidental refreshment. It is highly doubtful that the legislator, who sought to allow citizens to take advantage of their Sabbath rest to go to theaters or cinemas, would have insisted to prevent them from acquiring essential food items at a small grocery store or to refresh themselves at a gas station on their way to a place of recreation (See and compare Crim App 217/68 Izramex Ltd. v. State of Israel, 22(2) PD 343, 358-360 (1968), in which the justices in the majority narrowly interpreted the term “shop” in Article 249(20) of the Municipalities Ordinance – and held that a gas station is not included in the term, even though technically commerce does indeed take place in it).

  1. This interpretation of the Law of Work and Rest House, creating a substantial distinction between engaging in industry and commerce on the Sabbath and Jewish holidays and recreation and holiday activities and which is primarily positively received – is consistent with the principles that Prof. Ruth Gavison and Rabbi Yaakov Medan formulated in the Gavison-Medan Contract (see Yoav Artsiali, Amanat Gavison-Medan: Ikarim Viekronot [Gavison-Medan Contract: Essences and Principles] 40-45 (2003)). According to the contract, “Government offices, educational institutions, industrial factories, banks, services and commercial institutions will be closed on the Sabbath”. However, “Restaurants and recreational establishments will not be prohibited from operating on the Sabbath […] a limited number of small grocery stores, gas stations and pharmacies will not be prohibited from operating on the Sabbath”. That, as Prof. Gavison explained, is out of a desire to preserve the uniqueness of the Sabbath in the Israeli public sphere, with the understanding “that the operation of restaurants and recreational establishments on the Sabbath is not exceptional but rather is necessitated by the character of the Sabbath” (ibid, p. 42). This sharp distinction between commerce and industry and entertainment and holiday is also expressed on a different level –interpreting the discretion that Article 12(a) gives the Minister of Labor to grant a permit to employ workers during their weekly rest. It was held that –

“This broad power that was given to the […] is intended to extend the power to grant permits not only to the supply of essential physical necessities, but also in order to ensure essential necessities of the public or of parts thereof in spiritual matters and the spheres of culture, art, leisure and entertainment. It is intended to ensure the individual’s quality of life in a free society that has freedom of religion and freedom from religion. It is intended to allow a person to realize in a proportionate manner the social aspect of the Sabbath in accordance with his tastes and his lifestyle, and to give expression thereby to customs, lifestyles and the various cultures in the many strata of Israeli society” (the Design case, para. 3 of Justice A. Procaccia’s opinion).

 

As an aside, I will add that this narrow interpretation of Article 9A of the Hours of Work and Rest Law is also appropriate for external reasons, given its infringement on the constitutional right to freedom of occupation and the criminal sanction that attaches to its violation (see para. 43 of President M. Naor’s opinion).

Note that the distinction between commerce and industry and business activity in the field of recreation and entertainment derives from two sources. On the normative plane, it is based on the text of Article 9A of the Hours of Work and Rest Law and on the position the case law takes regarding the purposes of days of rest, as was presented above. Indeed, this position may raise difficulties from the traditional Jewish law point of view regarding the appropriate character of the Sabbath and Jewish holidays. For that reason, I attach primary importance to the secondary source – namely, the Gavison-Medan Contract. The beauty of the contract in my opinion is that it is a sincere and real attempt of respected and prominent leaders of the hawkish ideological camps – Rabbi Yaakov Medan, among the leaders of the Har Etsion Hesder Yeshiva, and Prof. Ruth Gavison, winner of the Israel Prize in law, who specializes in issues of religion and state and does not come from the world of Jewish law – to reach a necessary compromise on the sensitive issue of the status of the Sabbath in the public sphere (and at the broader level, of the relations between religious and the State of Israel). In my perspective, only a true compromise in which both sides give up the aspiration of “all mine” regarding the public sphere – and certainly the personal sphere – suits the complexity of the social fabric, the national as opposed to the personal, if you will – an expression of the fact that the State of Israel is a Jewish and democratic state.

  1. Against the background of this interpretation of the Hours of Work and Rest Law, the question arises of how to interpret the authority granted the municipality, in Articles 249(20)-(21) of the Municipalities Ordinance –

“(20) To regulate the opening and closing of shops, factories, restaurants, coffee shops, tea houses, drinking establishments, cafeterias, canteens and other institutions of this kind, and of cinemas, theaters and other places of public entertainment or other kinds, and to supervise their opening and closing, and to determine – without infringing on the generality of the authority – their hours of operation on any given day; However, the validity of this passage is subject to any exemption that the Minister creates in an order;

(21) A municipality may use its authority pursuant to paragraph (2) within its jurisdiction or in part of its jurisdiction regarding days of rest, taking into consideration reasons of religious tradition and regarding the day of Tisha B’av; “days of rest” – as detailed in Article 18A of the Ordinance on Governance and Law Organization, 5708-1948, on this issue, the Sabbath and Jewish holidays – from the start of the Sabbath or Holiday until their conclusion; ‘the day of Tisha Ba’av’ – in its meaning in the Law Prohibiting Opening Places of Entertainment on Tisha Ba’av (Special Authorization), 5758-1997”.

 

The combination of these clauses would appear to create explicit authorization granting the local authorities broad discretion for all that concerns opening and closing businesses on the Sabbath – be they shops and workshops or restaurants and coffee shops. However, this interpretation creates a problem, because it puts Articles 249(20) and (21) of the Municipalities Ordinance on a collision course with Article 9A of the Hours of Work and Rest Law, which prohibits, as noted, opening workshops or shops on the Sabbath and Jewish holidays in areas with a substantial Jewish population.

  1. As a theoretical matter, we could deal with this apparent contradiction using three different models: First, allowing the earlier norm to prevail, for the reason that the later norm does not address the same issue, and therefore there is no contradiction between them. In our case, the substantive similarity between Article 9A of the Hours of Work and Rest Law and Articles 249(2)-(21) of the Municipalities Ordinance is too great to allow us to choose this path. Second – allowing one of the norms to prevail, according to the rules of conflict of laws that give supremacy to the later norm (lex posterior derogate priori) or the specific norm (lex specialis derogate generali). Given the centrality of the Hours of Work and Rest Law, this position does not seem appropriate in our case – because it is hard to argue that Article 249(21) of the Municipalities Ordinance sought to cancel, implicitly, such a substantive arrangement. That is especially true, given the Explanatory Notes of the Local Authorities Bill (Prohibition on Opening and Closing Businesses on Days of Rest), 5748-1988, H.K. 1872, 134, which became (in the framework of the Law to Amend the Municipalities Ordinance (No. 40), 5751-1990, S.H. 1336, 34) Article 249(21) of the Municipalities Ordinance. These explanatory notes make it clear that “the goal of the proposed law is to remove the above-stated doubt [regarding the power of local authorities to regulate the opening and closing of businesses on days of rest; N.H.] and to preserve the ‘status quo’ for that issue” (emphasis added). Because Article 9A of the Hours of Work and Rest Law, which was passed in 1969, constitutes a later norm relative to Article 249(2) of the Municipalities Ordinance (from 1964), then preserving the status quote actually means not infringing on the Hours of Work and Rest Law. It would therefore appear that in our case, we should adopt the third model, which contemplates an interaction between the later and earlier norms, which together form a harmonious common arrangement. This model is also appropriate because of the important normative status of the Hours of Work and Rest Law, including its Articles 7-9A.

Preferring this model is consistent with the position of the learned former President A. Barak, according to which:

“The presumption should be in favor of legislative harmony within a legislative system, in such a way that the meaning given to a piece of legislation will be woven ‘faithfully into the embroidery of the legislation and will form together with it a single, whole entity’ […] one who interprets any particular provision interprets the entire body of legislation, and the meaning given to any particular provision must integrate into the meaning given the rest of the legislative provisions” (Aharon Barak, Parshanut Bamishpat – Parshanut Hahakika [Interpretation in Law - Legislative Interpretation] Vol. 2, 327-328 (1993)).

 

In other words, before an interpreter resorts to conflict of laws rules, which determine which of the competing norms will prevail – he should evaluate whether “the contradiction is real or imagined”, where “he is guided by the interpretive perspective that seeks to guarantee normative coherence and systemic consistency”. Only after the interpretive attempt to create legislative harmony fails, and it becomes clear that the contradiction between the norms is real, is there room to move to the second phase and evaluate which norm enjoys supremacy – either because its normative status is higher or because it is a specific or later norm relative to its rival (Aharon Barak, Parshanut Bamishpat – Torat Haparshanut Haklalit [Interpretation in Law, General Theory of Interpretation], Vol 1, 540 (1992)). Faithful to that principle, we must seek, therefore, the interpretation that allows Articles 249(2) and (21) of the Municipalities Ordinance to live together under the same roof as the prohibition that Article 9A of the Hours of Work and Rest Law imposes on opening shops and workshops during the fixed rest days.

  1. It seems that we can resolve the apparent contradiction between the above-mentioned norms using the distinction between a situation of “default” that Article 9A of the Hours of Work and Rest Law creates – closing businesses that operate in the areas of industry and commerce, and the absence of a prohibition on opening others – and the authority given to local authorities to deviate from that arrangement: if you wish, to allow a certain scope of industry and commerce; if you wish, to prohibit even the opening of places of entertainment.

In other words, Article 9A of the Hours of Work and Rest Law creates a national-state-wide arrangement, establishing that on the Sabbath, workshops or industrial factories will not be opened and there will be no commerce in shops, except in the framework of the exception grounded in Article 9A(c). However, based on the same rationale that prevents imposing a prohibition on operating places of entertainment at the national level – in other words, recognition of the existence of divergent approaches to the desired practical character of the Sabbath, and of the need to allow expression for groups whose worldviews reject the Jewish law model – the local authorities have been given the possibility to deviate from the general norm and create municipal arrangements. Thus, it is possible to balance the competing rights in the best way possible, while according weight to the unique characteristics of each urban area – including the preferences and worldviews of its residents. Sometimes, these characteristics will lead to relaxing the restrictions on business activity on the Sabbath and will permit a certain scope of commerce, and sometimes the result will be the opposite – to the point of limiting activities of recreation and entertainment.

This interpretive journey, which absolves us of the necessity to resort to conflict of laws rules, leads to the conclusion that in the absence of a relevant by-law, the nation-wide prohibition on business activity belonging to the categories in Article 9A of the Hours of Work and Rest Law will apply – and only on that business activity. It is clear that a local authority that wants to do so may deviate from the national arrangement, subject to the general restrictions imposed on municipal discretion.

  1. The normative picture arising from this interpretive journey has great meaning, because it leads to the conclusion that – in contrast to other contexts in which the legislator authorized the local authorities to regulate a certain issue at the municipal level – in our case the authorities have been given relatively narrow discretion. I will demonstrate the uniqueness of the case before us using a comparison with the Local Authorities Law (Special Authorization), 5717-1956, which authorizes a local authority “to enact a by-law that limits or prohibits sale of pork and pork products intended for consumption” within its jurisdiction or in parts of it. As this court noted in the Solodkin case (HCJ 953/01 Solodkin v. Beit Shemesh Municipality, 58(5) PD 595, 610 (2004) (hereinafter the Solodkin case) –

“Unlike the prohibition of the raising of pigs, with regard to which a national arrangement was adopted, a local arrangement was determined for the prohibition of selling pig meat and meat products. The purpose was therefore that the balance between the conflicting purposes — the considerations concerning the protection of religious and national sensibilities, on the one hand, and the consideration of individual liberty, on the other — would not be made on a national level, according to a principled balancing that the legislator determined. Instead, the purpose was to make a balancing at a local level” (emphasis added).

The legislator therefore deliberately refrained from setting a general norm regarding sale of pork, and left the issue, with the value-laden decisions it implicates, to the exclusive regulation of the local government – just as it did in the context of opening places of entertainment on Tisha Ba’av (Law Prohibiting Opening Places of Entertainment on Tisha Ba’av (Special Authorization), 5758-1997). Therefore, this court could have concluded that the municipal level had been granted broad discretion, and the legislator sought to give it – and not the central government – the choice among different solutions that are within the zone of lawfulness (Solodkin case, 620). However, that is not the situation in our case. As noted, the legislator chose to create a national arrangement regarding the existence of business activity on the Sabbath, and disclosed its opinion regarding the appropriate balancing model between freedom of religion, freedom from religion, freedom of occupation and the right to equality -- imposing a prohibition on commercial and industrial activity.

Under these circumstances, while the local authorities indeed have the authority to deviate from the national-country-wide arrangement that the legislator set - their discretion is relatively narrow. And the relativity regards the Minister of Interior, as I will explain. The authorities are not operating in a normative vacuum, and they should view the balance that the legislator created on the national level as a kind of anchor, or point of departure, for conducting the balances at the municipal level (It should be noted that a similar model, sketching general principles and leaving the local government space for discretion in its implementation, was also adopted in the framework of the Gavison-Medan Contract; See art. 14 of the principles [pp. 41-42] and the explanatory notes of Prof. Gavison [p. 43]). The zone of lawfulness within which the authorities operate to regulate business activity on the fixed days of rest is limited, therefore, relative to the one in which they operate in the context of selling pork and pork products. The mirror image is that the Minister of Interior has a much broader sphere of intervention in our case – certainly when he believes that the influence of a particular local arrangement will spill over beyond the four corners of the relevant authority and may eat away at the provision of Art. 9A of the Law of Work and Rest Ours at the national level.

To summarize – the local authorities have broad discretion, and they may deviate from the provisions of Article 9A of the Hours of Work and Rest Law. However, this is not a situation in which the legislator refrained from making a normative decision and left the issue for determination at the municipal level – as it did regarding the sale of pork or opening places of entertainment on Tisha Ba’av. On the contrary, a general norm prohibiting activities of industry and commerce on the Sabbath has unequivocally been established. In this state of affairs, the autonomy granted the local government for the issue at the focus of our case leaves room for more intensive oversight by the central government. A decisive part of that oversight is analyzing the ramifications of the local decision for the national arena – and the extent of infringement on the principled normative arrangement that the legislator adopted in Article 9A of the Hours of Work and Rest Law.

To that I add that the justification for more comprehensive oversight of the central government also derives from the substantive purposes of the days of rest – which deviate from the symbolic realm (similar to, let’s say, the prohibitions on selling pork or engaging in public entertainment on Tisha Ba’av), and it concerns the fundamental rights of the workers. These rights, which the Minister considered in his reasoned position, influence the scope of the discretion of the local authorities regarding opening businesses on fixed days of rest.

  1.  Given the principled ruling regarding the scope of the Minister of Interior’s intervention in decisions of the local authorities under Articles 249(20)-(21) of the Municipalities Ordinance, I accept the Attorney General’s position (presented in Paragraph 15 of the opinion of my colleague, President M. Naor), that the decision to invalidate the Second Amendment does not suffer from extreme unreasonableness – even though the Minister could, of course, have arrived at a different result. I will explain.

My colleagues, President M. Naor (paras. 26-27 [paras. 25-26-trans.] of her opinion) and Justice Y. Amit (paras. 2, 4 and 8 of his opinion) believe that the decision to invalidate the Second Amendment suffers from extreme unreasonableness, because it does not give sufficient consideration to the autonomy of the local authority. However, the normative picture that I presented offers, in my view, a response to that. It teaches that the legislator didn’t authorize the municipal level to act in a vacuum – but rather presented the nation-wide arrangement set in Article 9A of the Hours of Work and Rest Law as a departure point for exercising the authority. The autonomy granted, therefore, to local authorities is relatively limited – in a way that inherently increases the scope of the Minister of Interior’s legitimate intervention (compare with para. 8 of my colleague Justice Y. Amit’s opinion). In the case before us, the Minister of Interior explained his invalidating the Second Amendment with the concern that the supposedly local arrangement would erode the nation-wide arrangement that the legislator outlined – and would shape, de facto if not de jure, a reality that contradicts his value judgment (paras. 57-58 of the reasoned decision). In other words, it is not the balance that the Tel Aviv-Jaffa Municipality chose in itself that led to invalidating the Second Amendment – but rather its presumed influence on the national arena, beyond the borders of Tel Aviv. This explanation would appear to be at the heart of the Minister of Interior’s legitimate intervention, given the delicate system of balances between the two levels of the arrangement: national and local.

Furthermore, a study of the reasoned decision indicates that the minister did not sweepingly negate any opening of shops for selling food on the Sabbath. We should remember that the First Amendment permitted the opening of convenience stores in gas stations, the selling of food items in pharmacies – and even allocated three urban sites in which commerce is permitted. Beyond that, in his decision, the Minister of Interior took into account the number of businesses that would be permitted to open pursuant to the Second Amendment (para. 53 of the reasoned decision); their size (ibid), and the scope of discretion given to the Tel Aviv City Council regarding a future increase in the quotas (ibid, para. 56). In other words, the decision doesn’t completely negate the municipality’s ability to confer on the Sabbath a unique local character – but rather seeks a more appropriate balance between that character and the legislator’s normative determination regarding the national arena. Even if it would have been possible to arrive at a different decision, we should remember “that the appropriate solution is actually in the balance, and not in the complete negation of one world view in favor of another (para. 24 [para. 23-trans.] of President M. Naor’s opinion in the verdict). We cannot define a result that allows the unique character of Tel Aviv to be expressed – albeit in a balanced way, without completely discarding the value judgment that Article 9A of the Hours of Work and Rest Law reflects – as deviating in an extreme way from the zone of reasonableness.

Viewed in this way, the Minister of Interior’s decision does not constitute “intervention” in the municipality’s affairs. The model established is that the municipality’s position is a first decision, but it is subject to the Minister of Interior. The latter is the one authorized to approve or invalidate the by-law (“If the Minister delays the publication of a by-law […] he may do one of the following: (1) Order a cancelation of the delay; (2) Invalidate the by-law for reasons he will enumerate; (3) Return the by-law with his comments to the council for reconsideration”; Article 258(d) of the Municipalities Ordinance). Of course, he may take local considerations into account, but national considerations are not beyond the zone of his discretion – and are not an illegitimate consideration. Naturally, the range of the Minister of Interior’s discretion depends on the subject. My opinion is that, given the existing legislative picture – namely, the legislator’s decision to create a guiding national arrangement for the issue; as well as the public, moral, symbolic and practical importance of the Sabbath, including its ramifications for the substantive, fundamental rights of those who engage in the work, the local authorities’ discretion is limited. Consequently, the space for the Minister of Interior’s intervention in their decisions in this area is broader than usual. The starting point – in other words, the position of the authority – need not be the ending point. I note that Minister Deri’s decision is explained well, is thorough, and presents a consolidated position not just regarding the Sabbath but also regarding the legal situation.

Again, I emphasize, we are dealing with judicial review of the Minister of Interior’s decision. There is no dispute that the minister could have arrived at a different result, and could have approved the Second Amendment. Had he done so, I would have refrained from intervening for the very same reasons – recognition of the broad discretion granted him on the issue. Regarding the balance he chose, and review of that balance, caution is appropriate. In every decision requiring a balance between different considerations, one could arrive at a broad spectrum of results. For example, in general, one could accord equal weight to a number of considerations, or attach greater weight to a particular consideration. The decision by the executive branch to accord greater weight to a particular consideration does not necessarily render the result unreasonable – or even less reasonable. I think that the decision to invalidate the second amendment, due to considerations of protecting the nation-wide arrangement that the legislator outlined for the issue, is in the heart of the zone of reasonableness and proportionality, and there is no cause to intervene in it.

  1. Following these words, the opinions of the rest of the members of the panel came to me for consideration, including various additions. I again pondered the issue, and I will say this:

In the past, in various Jewish diasporas, in Poland, Morocco, and in the old settlement of Safed, Jews observed the Sabbath according to religious law. Today, in the 21st century State of Israel, Jews argue about the Sabbath. That is especially true regarding the Sabbath in the public sphere. This argument, which is appropriate in character and image, preserves, at first glance paradoxically, the relevance of the Sabbath and guarantees that it will constantly change its shape, but will remain a unique day in the Israeli-Jewish public experience. To paraphrase the famous words of Ahad Ha’am, cited above, we can say that “More than the Jewish people kept the argument over the Sabbath, the argument kept the Sabbath and its status in the State of Israel.”

The truth must be told, and it is apparent. In the State of Israel, a large group observes the Sabbath according to Jewish law, and another large group does not do so. The range between the extremes is broad and rich. Concerning the character of the Sabbath in the public sphere, there is considerable debate among the groups and even within them. And yet, and this would be a sad irony if specifically in the State of Israel, there would be an infringement on the social-spiritual component of rest on the Sabbath, which is grounded in the Hours of Work and Rest Law. That is because the Jewish religion is the one that brought the social revolution into the world – maybe the first of its kind – that is latent in the Sabbath. The idea at the foundation of the weekly day of rest was accepted and implemented by humanity in its entirely. The angel of rest whispers into the ear and tells the worker: You are a worker but not a slave. Indeed, you shall eat bread earned through your sweat, and the work is difficult and essential, but it should not be allowed to swallow the human being and his personality. Simultaneously, the angel of rest whispers into the ear and says to the employer: You are the strong party, but for one day of the week there is equality between you and the worker, who is exempt from your affairs. Values of equality, rest and the freedom of the spirit that the Sabbath represents are strongly tied to the religious origin and history of the Jewish people and reasons of tradition.

Our framework is legal. As judges, our role is to rule according to the law of the State of Israel. Indeed, from a birds-eye perspective, and theoretically, the various opinions show that it is possible to interpret the Hours of Work and Rest Law and the Authorizing Law in different ways. However, that situation itself may constitute, in my opinion, an additional reason for the caution required regarding the court’s intervention into the delicate issue placed before us. In any event, and without diving into the details again, my interpretive position is that the existing legal framework is built on an interaction between the local and the national, the religious and the social, individual liberty and recognition of the special public status of the Sabbath, and the city council’s powers and the powers of the Minister of Interior. The interpretation that seems correct to me, for the reasons enumerated, is that at the start of the game, the ball is in the city council’s court, but it later passes to the Minister of Interior’s court. Given the implications of municipal decisions about the rest of the worker, the employer and the business on the Sabbath – not to mention the status of the Sabbath as a national cultural symbol – the local authorities have not been granted exclusive discretion on the matter. The law authorizes the Minister of Interior to approve or invalidate by-laws. In my opinion, what emerges is the conclusion that the rest of the worker, the employer and the business on the Sabbath constitutes an issue that is not just local. In addition, it is hard to accept that the legal ruling in our case would not affect different places in Israel, beyond the borders of Tel Aviv-Jaffa. We should recall that the Minister of Interior is a member of the government chosen through parliamentary elections. Had the Minister of Interior chosen another position, I would think that the law would require refraining from intervening. In contrast to the majority position and the position of my colleague, Justice N. Sohlberg, I think that the outline of the law allows for broad interpretation, which could lead to two results. On the one hand, the law authorizes the local authorities to permit commerce on the Sabbath, and on the other hand it imparts to the Minister of Interior broad discretion in which we should not rush to intervene. Given the Minister of Interior’s position, which is reasoned and to the point, my opinion is that we should respect it, and this court should not intervene.

  1. Were my opinion to prevail, then, we would order the motion for a further hearing granted so far as the Second Amendment is concerned – in the absence of a cause for intervening in the reasoned decision of the Minister of Interior in our case. Given the result, and the way the proceedings have played out, I would not order court costs.

 

  •  

 

Justice N. Sohlberg

I read the important opinion of my colleague, President M. Naor, and I considered its reasons, but I do not agree with it.

  1. Two central questions have been set before us: first, were the amendments to the Tel Aviv-Jaffa By-Law of Tel Aviv-Jaffa (Opening and Closing Shops), 5740-1980 enacted pursuant to authority in law? Second, does the Minister of Interior’s decision not to approve these amendments rise to the level of extreme unreasonableness? Note: the question of authority precedes the question of reasonableness; in the absence of authority, there is no need to address the question of reasonableness. However, in her opinion, my colleague places reasonableness before authority.

According to her methodology, the principle of local autonomy means that the discretion over opening and closing businesses on days of rest should be first and foremost given to the local authority. That is the principled point of departure for my colleague, the President, in her opinion – from the beginning and in the end – and it seamlessly weaves together the opinions of my male and female colleagues who joined the majority opinion. In their approach, “it is

  1. The dispute between my colleague and me – similar to the dispute that emerged between us recently in FH HCJ 5026/17 Gini v. Chief Rabbinate [unpublished] (September 12, 2017) (hereinafter: Gini Further Hearing) – is not just the question of what is the interpretation of the law; the root of the dispute is deeper, and it is entrenched in the question of the way in which the law should be interpreted. My colleague, it seems to me, interprets the law ‘from top to bottom’, according decisive weight to the fundamental, value-laden perspectives that are suitable (in our case, the desired division of authority between the central government and the local government); as a consequence, the desired law takes the place of the law in fact, and fundamental perspectives are what shape, de facto, the correct interpretation. According to my approach, interpretation of the law should be done ‘from bottom to top’, through the work of ‘digging’, which is sometimes exhausting, from the foundation to the rafters. It is not (just) perfuming ourselves with fundamental principles and constitutional rights, but rather analyzing the law and all its parts, from its legs to its guts.
  2. Before we address the merits of the issue –  a brief comment on the justification for holding a further hearing. According to the methodology of my colleague, the President, “the procedure of a further hearing is intended for clarifying a rule that was decided in a verdict, and not for discussing what the verdict does not contain” (para. 17) [para. 16-trans.], and therefore there is no room to address the Minister of Interior’s position in the context of the further hearing before us, “which was not submitted to the panel in the proceeding that is the subject of the further hearing” (ibid). According to her position, that is sufficient to warrant rejecting the motion for a further hearing, and her addressing the merits of the Minister of Interior’s position is therefore ‘not required by law’. As far as I’m concerned, there is no justification for saddling the petitioners with the Minister of Interior’s omissions. In any event, even without addressing the question of whether the Minister of Interior’s position in itself warrants holding a further hearing (given the date it was submitted), the motion for a further hearing is based in more than just that position alone. In addition to the Minister of Interior’s position, we have been presented with a question of the interpretation of the provisions of Article 9A(a) of the Hours of Work and Rest Law, 5711-1951 (hereinafter also: the Law), of the provisions of Articles 249(2) and 249(21) of the Municipalities Ordinance [New Version] (hereinafter also: The Ordinance), and the relationship between them. As counsel for the Attorney General noted in their response – “Concerning the honorable court’s determination in Paragraph 22 of the verdict [that is the subject of the further hearing – N.S.] regarding the normative relationship between Article 9A of the Hours of Work and Rest Law and Articles 249(2)-(21) of the Municipalities Ordinance – this is a new and important precedent” (para. 25 of the response). My colleague, the President agrees, in her ruling that this issue needs to be decided (para. 41 of her opinion [para. 40-trans.]), and I agree. I will now address the question at hand.

 

The Authority

  1. Does the Tel Aviv-Jaffa Municipality have the authority to order the opening of businesses on the Sabbath? In order to answer that question, we must address the correct interpretation of the provision of Article 9A(a) of the Hours of Work and Rest Law, and of the provisions of Articles 249(2) and 249(21) of the Municipalities Ordinance, and the symbiotic relationship between them.

Article 9A(a) of the Law of Work Hours and Rest

  1. According to my colleague’s position – “the Hours of Work and Rest Law does not address the question of opening or closing businesses on the day of rest, but rather the personnel question of work on the day of rest” (para. 43 of her opinion [para. 42-trans.]). My colleague learns this from the text of the provisions of Articles 9 and 9A of the law and from their captions, as well as from the explanatory notes to the draft law through which Article 9A was added. To borrow from the world of yeshiva erudition: my colleague believes that the provision of Article 9A(a) creates a “gevara” prohibition – hinging only on the shop-owner; as opposed to a “heftsa” prohibition – whose application is on engaging in commerce in the shop itself. This division, which is also relevant on the conceptual level, may also have a certain hold in the text of the law; in any event, in my opinion, it cannot withstand an evaluation of the purpose of the law – subjective and objective alike. As will be clarified below, the purpose of Article 9A is to prohibit a shop-owner from engaging in commerce in his shop on the days of rest; either personally or not personally.
  2. As noted, according to my colleague, the text of Article 9A and its caption indicate that its application is personal. As for me, I think the text of the article (“A shop owner shall not engage in commerce in his shop”) and its caption (“Prohibition on Work During the Weekly Rest”) do not help our case; both are consistent with the two interpretive possibilities before us. The term “work” and the phrase “shall not engage in commerce” can be interpreted as a personal act, as well as a description of general activity. Thus far, the court has not had to directly address the interpretation of Article 9A, and in any event not to rule on it. It is true that we can find statements about the article and tiny hints about the relationship between it and the Authorizing Law, but only as obiter dictum, because there was no need for an exhaustive, in-depth discussion of the interpretation of the law’s provisions. That was true for the Israel Theaters case (HCJ 5073/91 Israel Theaters Ltd. v. Netanya Municipality, 57(3) PD 192, 207 (1993) (the verdict addressed cinemas, and as will be clarified below, there is no dispute over the fact that Article 9A does not apply to them); that was also the case for the Design case (HCJ 5026/04 Design 22- Shark Deluxe Furniture Ltd. v. Director of Sabbath Work Permits Department – Ministry of Labor and Social Affairs, 60(1) PD 38, 63 (2006) [sic-trans.]. There is therefore no ‘precedent’ on the issue, and that is why we have convened. I will evaluate the intention of the legislator, as reflected in the legislative history, in case it can shed light on the correct interpretation of the article (on the importance of legislative history as a primary interpretive source, see my opinion in the Gini Further Hearing, paras. 4-11).
  3. In bringing the draft law through which Article 9A was added to The Law before the Knesset plenary for the first reading, then-Minister of Labor Yigal Allon began by presenting the bill as such:

“I am satisfied that this time I can submit to the Knesset a bill that can expand the application of the obligation of rest on additional kinds of workers, without violating the status quo regarding religion.

As far back as the debate that emerged in the last government, I opined that instead of legislating a law having a religious character, which could infringe on freedom of recreation, we should amend the Hours of Work and Rest Law, which blends a social principle with recognition of the days of rest traditional to members of each religion.

While at the start of this century, there was a conception that labor laws are intended to protect only manual wage laborers, this conception has expanded, and there is no dispute today that the state should extend its protection to every worker as such – a manual laborer and an office clerk, a salaried employee and an independent contractor.

The draft law before you seeks to establish that what is accepted for the Sabbath and Jewish holidays rest for salaried employees in manual labor and industry will also apply to independent contractors and members of cooperatives in those same sectors. Similarly, commerce in shops will be prohibited.

[…] In general, labor laws seek to ground existing practices, to improve the situation while setting legal determinations. In this case, too, the proposed legislation gives a legal imprint to the existing situation. Currently, private, cooperative factories and workshops throughout Israel and in the agricultural settlements also stop working. That is true for commerce in the shops. The concept of shop does not include guest houses, restaurants, coffee shops, places of entertainment, clubs, gas stations, beaches, swimming pools, sports facilities, etc. For these issues, the situation remains as it is today, both legally as well as in terms of the reality.

[…] It is hereby proposed to expand the application of the Hours of Work and Rest Law without infringing on the accepted status quo” (D.K 30, 2157-2158 (5726); emphasis added – N.S.).

  1. It is clear: the provision of Article 9A was not passed in a vacuum, but rather against the background of the existence of a ‘status quo’, in which people stop working on days of rest in factories and workshops, and shop owners cease their commerce; at the same time, businesses that meet needs for culture, entertainment and leisure are allowed to continue to operate as usual, even during days of rest. Excepting these kinds of businesses (called “places of entertainment”) from the prohibition grounded in Article 9A(a), in order to preserve “recreational freedom”, provides an indication about the bounds of the general prohibition. Infringing on ‘recreational freedom’, which the legislator feared, would happen only if places of entertainment were closed. If the application of Article 9A is indeed personal, how is it relevant to a violation of the status quo? If businesses – commerce or entertainment – can remain open independently through non-Jews, what is the point of distinguishing between the owners of this and the owners of that?
  2. Furthermore, the interpretation that the application of Article 9A is personal and does not seek to prohibit the commerce itself within the shops on days of rest appears to be inconsistent with the explicit words of then-Minister of Labor Yigal Allon, who said “commerce in shops will be prohibited” (ibid). Note: that was not an aside, but rather a faithful expression of the substance of the legal arrangement. Inter alia, comments made during the various debates of the draft law – both in the Knesset plenary as well as in the Labor Committee – clearly testify to the fact that the members of Knesset and the legal advisors related to the prohibition in Article 9A – clearly and simply – as a prohibition on commerce itself, which therefore requires closing businesses on days of rest. Thus, for example (and this is just a ‘tiny taste’ of the examples), in a debate held in the Labor Committee on January 1, 1969, Menahem Harniv, the legal advisor of the Ministry of Labor, said that “the provisions of the law require Jews to close their shops on the Sabbath”; Later in the debate MK Moshe Aram, the committee chairperson, noted that “this law guarantees that a Jew will not open his shop on the Sabbath” (Transcript of Meeting No. 185 of the Labor Committee, 6th Knesset, 13-14 (January 1, 1969). Similarly, during the debate on July 3, 1968, one of the committee members asked the legal advisor of the Labor Ministry, will the law require closing businesses that were open prior to its entering into force? His answer was as follows: “If there is currently a local authority in which shops are open – because there is no by-law that closes – let’s assume theoretically there is a city in which shops are open on the Sabbath – and this will obligate the shops even without the local authority doing anything” (Transcript of Meeting No. 154 of the Labor Committee, 6th Knesset, 14 (July 3, 1968) (hereinafter: Transcript of the July 3, 1968 debate).
  3. We can find another unequivocal expression of the legislator’s intention in comments made during a debate in the Labor Committee over Article 9A(c), which provides as follows:

“A non-Jew may – regarding his workshop, industrial factory or shop that is within the jurisdiction of a local authority or in a quarter of the local authority where the number of non-Jewish residents are at least one third of all residents of the authority or quarter, depending on the circumstances – observe the prohibitions of this article on the above-stated days of rest or on his Sabbath and holidays, as he chooses”.

  1. This article, which creates an exception to the provisions of Article 9A(a), teaches us that a non-Jew may open his shop on the days of rest, provided that it is in an area where the number of non-Jewish residents constitute at least one third of the residents of that area. The deputy legal advisor of the Ministry of Religious Affairs said, against the background of the enactment of this article:

 

“The trend is in fact a compromise between two opposing interests. In general, it is in the interest of every person to observe the days of rest in his religion freely, and in the State of Israel there is freedom of religion for all who desire it, for all the religious communities. On the other hand, we should ensure that a small minority living in the same quarter or city will not disturb the Sabbath or holiday rest of the large majority of people living in the same area. Therefore we made this formula of compromise, of two thirds and a third. That means if the minority in that same place is large enough to constitute more than a third of the residents, then we should take it into consideration. It is already a factor, even though it is still a minority. It might be only 40%, but it is a large enough minority that we should take it into consideration and give it the possibility to choose its days of rest according to its religion. But if the minority is small, let’s say 20%, in my opinion it would infringe on the large majority, the 80% of residents, if that 20% would open their businesses on the Sabbath. That is what the law seeks to prevent […]

Were we not to make this limitation, every person would be able to open his business without any limitation – let’s say if there were just 5% non-Jews in an area of a Jewish community, without taking into consideration the 95% Jews there – we might even encourage fictions, of Jewish business owners fictitiously, or through other arrangements, selling their businesses to non-Jews in order to open them on Sabbath days. That is what the law explicitly seeks to prevent and therefore established residents of that same area and not business owners as a criterion for opening or closing the shops (Transcript of Meeting No. 162 of the Labor Committee, 6th Knesset, 9 (July 31, 1968); emphasis added – N.S.).

  1. The consequence of the above is that the purpose of the prohibition established in Article 9A is also aimed at preserving the character of the public sphere on days of rest by closing commercial establishments on the Sabbath, because if that were not the case – why would the legislator set a limitation related to the composition of the population?

Furthermore, setting this limitation is also embedded in the fear of a fiction, in which Jewish business owners would sell their shops to non-Jews and thus (“or through other arrangements”) bypass the prohibition on opening the store on days of rest. Note well: the same fiction that the legislator feared would be brought in by Jewish shop owners through the “back door” – my colleague, the President, seeks to bring in through the “front door”; It would be sufficient for a Jewish shop owner to engage in commerce in his own shop through a non-Jewish employee, and he would not have to make the effort to “sell” his shop.

  1. We have before us explicit and unequivocal expressions of legislative intent. Had counsel for the Attorney General not argued that “It is difficult […] to know the subjective intention of the legislator at the time it enacted the above-mentioned Article 9A” (para. 54 of the Attorney General’s response; in my opinion it is not so difficult, it is our obligation in interpreting a law to deal with all its aspects), I would barely have bothered to expand on the issue. I have brought only the conspicuous examples, which can enlighten us and give us a clear explanation. One who wishes to learn and go into depth can read the various transcripts, and he will come to know that the debates over the draft law – explicitly and implicitly – are all based on understanding the prohibition as relating to the very commerce in the shop, and not just the labor of the shop owners.
  2. Beyond the unequivocal intent of the legislator (and even if I were to accept the approach that its weight in legislative interpretation is not great; see the position of my colleague in the Gini Further Hearing, para. 19 of her opinion), we will address the fundamental internal contradiction created by approaching Article 9A, with its subsections, as dealing with the personal question of work on the day of rest. As is known, “Every legislative unit is evaluated against the background of the entire piece of legislation in which it appears and from which we can learn the purpose that the legislator sought to achieve. We should aspire to achieve harmony among the various parts of the law (Aharon Barak, Parshanut Tachlitit Bamishpat ]Purposive Interpretation in Law[ 402 (2003); emphasis added – N.S.). We should therefore interpret the prohibition established in Article 9A(a) in a way that is consistent with the provision of Article 9A(c), and we should not abide by an interpretation that places them in a state of contradiction (see also HCJ 6494/14 Gini v. Chief Rabbinate [unpublished], para. 34 of my opinion (June 6, 2016)). As the Minister of Interior noted in his letter of June 26, 2017 to the Attorney General (which was submitted for our consideration under the heading ‘Position of the Minister of Interior’; emphasis in original): “Adopting the interpretation [according to which the application of the prohibition set in Article 9A is personal – N.S.], would lead to an absurd situation in which a non-Jew would be prohibited from working as an independent business owner on the Sabbath in most cities in the State of Israel (insofar as they don’t have ‘at least a quarter of the authority’s residents’ who are non-Jews, pursuant to Article 9A(c-d) of the law), amazingly, he would be permitted to work as an employee for a Jewish business owner. Does a fundamental contradiction like that make sense?”; It is a good question, and it has no answer – neither in the response of the Attorney General nor in the opinion of my colleague, the President.
  3. The intention of the legislator, as well as a logical and harmonious reading of Article 9A of the Hours of Work and Rest Law, with its subsections, indicates that the prohibition grounded in it does not apply just to the work of shop owners, but rather to the very fact of commerce in shops on the days of rest.
  4. Note: if indeed, as my colleague concluded, the application of the prohibition set in Paragraph 9A(a) of the law is personal, and the point of departure is that it is permissible for commercial establishments to be opened on the days of rest (by non-Jews), then we would, it seems, close the discussion at this stage, because what would be the value of the Authorizing Law? My colleague adopts the argument of counsel for the Attorney General, namely that “we are dealing with provisions of a law that cover various issues, which we can compare, metaphorically, to two stories completing each other to form one building. One who enters the first floor – the licensing floor – would find himself facing the power of the local authority to regulate the opening and closing of businesses on the Sabbath. Once he leaves the first floor, holding a license to open a business, he approaches the second floor – the floor of the non-waivable labor laws. There the business owner discovers he is obligated to observe the prohibition against employing Jews and Jews working on the Sabbath, together with all the other provisions of the Hours of Work and Rest Law” (para. 68 of the Attorney General’s opinion; para. 40 [para. 39-trans.] of the President’s opinion). Think about it: If the default set in Article 9A is that the entirety of businesses is permitted to open on days of rest, why do we need two stories? Why should the business owner bother entering ‘the first floor’? It would be enough to approach ‘the second floor’, which allows him to open his business through a non-Jew, even in the absence of the Authorizing Law. However, to the extent that Article 9A prohibits the very act of commerce in shops during days of rest, then we must evaluate the bounds of the power granted the local authority pursuant to Articles 249(2) and 249(21) of the Municipalities Ordinance (quoted in para. 39 [para. 38-trans.] of the President’s opinion) and the relationship between it and the above-mentioned prohibition. I will address that now.

 

The Authorizing Law

 

  1. According to my colleague, “the Authorizing Law explicitly authorizes the local authorities in Israel to enact provisions in their by-laws that address opening businesses in their domains on the Sabbath […] The above-referenced article [Article 249(21) – N.S.]  explicitly refers to Article 249(21), which addresses ‘the opening and closing of shops’ […] I cannot accept the argument that a law that authorized, inter alia, ‘regulating the opening […] of shops and factories […]’ was intended to apply only to places of entertainment or only to regulating the closure of businesses. That argument is incompatible with the clear text of the law” (ibid; emphases in original). According to my colleague, even if we accept the interpretation that Article 9A articulates a sweeping prohibition against opening businesses on the Sabbath, “it would be a contradiction between the Authorizing Law and the Hours of Work and Rest Law, meaning provisions that are on the same normative plane. Under the non-interpretive standards we use […] the Authorizing Law prevails as a law enacted after the Hours of Work and Rest Law […] and in any event it is a more specific law that specifically grants authority to the local authorities in Israel in a targeted way, in contrast to the generality of the Hours of Work and Rest Law” (para. 44 [para. 43-trans.] of her opinion). 
  2. It cannot be denied. The broad language of Article 249(20), on which Article 249(21) rests, apparently contradicts the provision of Article 9A of the Hours of Work and Rest Law. In order to deal with this contradiction, we must evaluate how things developed chronologically. As I will clarify below, according to the non-interpretive standards that my colleague discussed, the Hours of Work and Rest Law is the later, and also the more specific law regarding the power granted the local authority pursuant to the Municipalities Ordinance.
  3. The Municipalities Ordinance [New Version] was enacted in 1964, based on the Mandatory Municipalities Ordinance. Article 249 of the ordinance establishes the powers granted to the municipality, including the general authority to regulate “the opening and closing of shops” (caption of art. 249(20) of the ordinance). Based on that authority, together with the authority granted the municipality to enact by-laws pursuant to Article 250 of the ordinance, local authorities have, throughout the years, enacted by-laws regulating the opening and closing times of various businesses in their jurisdictions on days of rest.
  4. In 1969, the Hours of Work and Rest Law was amended, and Article 9A was added to it, which set, as aforementioned, a prohibition on commerce in shops on days of rest, with a distinction drawn between commerce and places of entertainment. The question of the meaning of “shop” as stated in the article, and the need to define it, were debated at length within the Labor Committee; during the debate on July 3, 1968, a letter signed by the Minister of Justice, The Minister of Religion and the Minister of Labor was presented, in which they proposed to add to Article 9A the following clarifications:

“(a) To add a definition of the term ‘shop’ as follows: a shop for purposes of this article – a place of business whose primary business is selling goods to be consumed outside the place. Excepting pharmacies and gas stations.

(b) To add a provision establishing that in order to remove doubt, it is hereby clarified that each local authority will be authorized to enact by-laws adding, within the jurisdiction of the authority, a prohibition on running, on the weekly day of rest, a business whose running is not prohibited by this article” (Transcript of the July 3, 1968 debate, p.2; emphasis added – N.S.).

 21. From the above we learn two things relevant for our case: First, in legislating Article 9A, the legislator had in mind the local authority’s power to enact by-laws regarding opening and closing times for businesses on days of rest. The clarification that the legislator considered adding on this issue was only “to remove doubt”; Second, the provision of Article 9A sought to establish an arrangement that set a threshold of closing businesses on days of rest, to which the local authority would be allowed to add a prohibition regarding “a business whose running is not prohibited by this article” (meaning – an entertainment establishment), but not to subtract from it (meaning – to permit the opening of commercial establishments). The words of Menahem Harniv, the legal advisor to the Ministry of Labor, as he clarified the need for the addition proposed in the ministers’ letter, are instructive regarding the scope of the municipality’s authority under the amendment to the Hours of Work and Rest Law and thereafter:

“For those who think that the local authorities have the power to prohibit [opening businesses – N.S.] – this only adds. It says the same thing that already exists, and in fact does not change something. For those who, by the way, want to say: If I prohibit, then I can also permit […] then there’s no need to accept the whole law. Then there’s no need for a state law. We can leave it as is. Every local authority – if it wants, may prohibit, and if it doesn’t want – may permit” (ibid, p. 12).

  1. We thus see that prior to the legislation of Article 9A, the local authority’s power in regulating the opening and closing of commercial and places of entertainment on days of rest was quite broad – if it wanted, it prohibited, if it wanted, it permitted. Article 9A of the law narrowed the bounds of that power, and essentially negated the power of the local authority to enact a by-law that permits the opening of ‘shops’ that had been prohibited from opening on days of rest. Note: Unlike my colleague, Justice N. Hendel, I do not think that Article 9A defines a ‘default’ from which the local authority may deviate (para. 13 of his opinion). In my opinion, this article, which was, as noted, enacted out of recognition of the power of the local authorities to regulate the opening and closing of ‘shops’ in their jurisdictions on days of rest, in practice limited such power. To complete the picture, I note that at the end of the day, it was decided not to add the above-mentioned clarifications from the ministers’ letter (because, inter alia, the main points were clarified in the transcript), but that does not alter the fact that Article 9A was enacted while the legislator had in mind the power granted to the local authorities pursuant to Article 249(2).   
  2. I will therefore repeat what I said at the start: Indeed, the arrangement grounded in Article 9A of the Hours of Work and Rest Law stands in contradiction to the text of Article 249(2) of the Municipalities Ordinance. However, the arrangement in Article 9A is the later in time, it is the more specific of the two, and therefore it narrows the broad authority imparted to the municipality under Article 249(20).
  3. Having clarified the relationship between Article 9A and Article 249(2), we can evaluate the substance of the amendment that was done by adding Article 249(21) to the ordinance. As my colleague the President noted in her opinion (para. 38), the basis of the Authorizing Law in the Magistrate Court’s verdict in Crim Case (Jerusalem Magistrate) 3471/87 State of Israel v. Kaplan [unpublished] 5748(2) PM 26 (1987) (hereinafter: the Kaplan case), in which it was held that local authorities may not order the closing of places of entertainment on days of rest for religious reasons. Given that, the Municipalities Ordinance was amended, and Article 249(21) was enacted, which sought to permit the local authority to also consider religious considerations in exercising its power under Article 249(2) of the ordinance. In bringing the draft bill before the Knesset plenary for a second and third reading, the committee chairperson, MK A. Lein, emphasized that, “this is not a special law, that is the authorizing law; what is before us is an amendment to Article 249 of the Municipalities Ordinance […] this law is not about changing an established and accepted legislative norm. We have here a decision of a Magistrate Court in Jerusalem, which has created confusion about the meaning of the law” (Transcript of Meeting No. 241 of the 12th Knesset, 3, 8 (December 17, 1990); emphasis added-N.S.). The consequence of the above is that the addition of Article 249(21) was not intended to establish a new power of the local authority to regulate the opening and closing of businesses in its jurisdiction on days of rest, but rather explicitly to clarify that the power granted the local authority at the outset, under Article 249(2), could also be exercised “taking into consideration reasons of religious tradition”. As the committee chairperson noted: “The central and most important change in the draft bill before you is encompassed in the provision that says that opening and closing businesses and places of entertainment in Israel may be done, by explicit authorization, also for reasons of religious tradition. That is the central, principled and exclusive change included here in the draft bill” (ibid, p. 5; emphasis added- N.S.). In my opinion, Article 249(2) clarified what is already clear.
  4. To summarize this part: Article 249(20) grants the local authorities power to regulate the opening and closing times of businesses in their jurisdiction, including during days of rest. Article 9A of the Hours of Work and Rest Law established a specific arrangement, later in time, for the opening and closing of businesses on days of rest. That arrangement, in practice, narrowed the broad power that had been granted to the local authorities under Article 249(2). Article 249(21), which was worded by reference to Article 249(20), sought explicitly to clarify that this power of the local authority can also be exercised for religious considerations. In any event, Article 249(21) does not seek to change the bounds and substance of the authority, which is still subject to the arrangement set in Article 9A.

 

Social Purpose

  1. An evaluation of the Hours of Work and Rest Law from a broader perspective also supports the conclusion that the local authority lacks the power to order the opening of commercial establishments on the days of rest. As is known, “There are two purposes that underlie the arrangements concerning the hours of weekly rest in the Hours of Work and Rest Law, and these complement one another” (the Design case, p. 57). One purpose is a social-societal purpose, “that a weekly day of rest should be designated for each person to rest from his work, spend time with his family or in the company of friends and have time for holiday and entertainment, according to his choices and preferences. Establishing the day of rest was also intended to protect the health of the worker and guarantee fair labor conditions” (Israel Theaters case, 207-208). The second purpose is religious-national, “which regards the observance of the Sabbath by Jews as a realization of one of the most important values in Judaism that has a national character. In a similar spirit, designating other days of rest for persons who are not Jewish realizes their religious outlook” (Design case, p. 58; On the national, spiritual and cultural importance of the Sabbath see the beautiful words of my colleague, Justice N. Hendel, in paragraph 2 of his opinion).
  2. The prohibition on opening commercial establishments on the Sabbath, which dictates – and to a large extent compels – a unitary day of rest for the entire economy, with some infringement on freedom of occupation, constitutes a central means of achieving the purposes of the law, and it is what allows business owners to rest from work without worrying about their livelihoods: “This violation — which is mainly a prohibition of working on the Sabbath — applies in principle equally to all owners of businesses, and therefore prima facie it cannot give an unfair competitive advantage to one competitor or another” (Design case, p. 63). If we accept the interpretation that permits the opening of commercial establishments on days of rest, we would, in practice, negate the ability of business owners who wish to do so to stop working on their day of rest; they were crying in grief under the weight of their work on the Sabbath, and their cry for help rose up. Thus, the owner of a commercial establishment who decides to make his own Sabbath, meaning to open his shop on the Sabbath (through a non-Jew) acquires for himself – and according to my colleague, lawfully so – a competitive advantage over the commercial establishments operating nearby. The latter, who fear incurring financial loss – both in terms of loss of profits as well as the ‘leaking’ of their customer base – would be forced to open their shops, too, in order to avoid ‘being left behind’.  Therefore they will have to hire non-Jewish workers (see Articles 9 and 7(b) of the Hours of Work and Rest Law), but the ability to do so is reserved particularly for the owners of large businesses, who have the financial resources required to do so. A small business-owner, on the other hand, who cannot afford to hire a non-Jewish worker to work in his place on the day of rest, will throw his hands up in the air. The small business owners don’t even have the possibility of giving up their day of rest and competing: On one hand, they can’t afford to hire a non-Jewish worker; on the other hand, they are not permitted to engage in commerce in the shop themselves. The small merchants are the ones expected to absorb the financial loss stemming from opening commercial establishments on the days of rest (see and compare the words of Justice (as he was then called) E. Rubinstein in App Adm Pet 2469/12 Bremer v. Tel Aviv-Jaffa Municipality (unpublished) (June 25, 2013), para. 3). Clearly, such a result is not desirable, and it is completely opposed to the social purpose of the Hours of Work and Rest Law.
  3. We should now ask: if the social purpose is indeed so important, why distinguish between commercial establishments and places of entertainment, as the legislator did? Shouldn’t – from both a national and social perspective – places of entertainment also stop their work? I think we can actually find an answer to that question in the words of my colleague the President (para. 50 [para. 49-trans.]):

“Communal life is not ‘all or nothing’ but rather is based on tolerance for a divergent opinion, mutual respect and mutual compromise. Communal life is not ‘black and white’ but rather a spectrum. It is responsive to the recognition that human beings are free creatures who design their life stories, but also to the recognition that they do so within the framework of society and not on a deserted island. It is based on the understand that each of us bears responsibility for society as a whole, but that does not mean giving up on fundamental components of our identity or the uniqueness of each of us. It is not a perspective of ‘I won’t sign on to desecrating the Sabbath’ but rather recognition of the indispensability of the perspective, ‘Live and let live’.

  1. The social purpose has two layers: The first layer is concerned with rest from labor and relaxation from travail; the second layer stands on the back of the first, and it is concerned with the quality of that rest. Specifically, due to the great importance of days of rest, we should recall that the character of the rest varies among people. For one person, the Sabbath delight is in prayer, the blessing over the wine, a feast, and rest within the bounds of Jewish law; another person, in contrast, seeks to delight in a museum exhibition, a family outing to the cinema or resting on the seashore. We should therefore allow each person to shape his day of rest according to his world view and belief:
  2. Alongside the protection of Sabbath observance from the national-religious aspect, the law leaves the social aspect of the day of rest open to be shaped in accordance with the variety of different lifestyles and tastes in the many sectors of Israeli society. Indeed, there are many different ways in which people decide how to act on the day of weekly rest given to them, each person in accordance with his way of life, belief and lifestyle [...] Within the framework of the social aspect of the Sabbath we require a recognition of the needs to depart from the prohibitions of employment where this is essential in order to allow the Sabbath to be shaped as the day of rest for the general public in a free, pluralistic and tolerant spirit, without causing disproportionate harm to other social groups, and without uprooting the unique national character of the Sabbath from among the Jewish people. We should thereby recognize that in order to realize the individual character and leisure culture of the individual, we also need public frameworks that will assist and allow this, including public transport that will allow the public to move freely, the opening of museums and cultural institutions, the activity of theatres and cinemas, the holding of lectures and congresses, and the like” (Design case, pps. 66-67).

 

  1. A person’s right to shape his day of rest in his image is not unlimited; additional values and interests hang in the balance, and we must balance between them. Opening commercial establishments on the Sabbath is different than opening places of entertainment – from both the point of view of the shop owners as well as the consumers’ point of view. The absence of a prohibition on opening places of entertainment on the Sabbath does indeed inflict a certain harm to the Sabbath day profits of owners of places of entertainment who seek to stop their work, but that harm is of a more limited quality and nature:

“A person who buys a pair of shoes on the Sabbath will not buy another pair during the week. Therefore, if some shoe stores are open on the Sabbath, those interested in closing on the Sabbath will lose part of the proceeds that would have otherwise accrued during the week, had all the shops been closed on the Sabbath. This loss would apparently be considerable, in light of the fact […] that the proceeds that would be received at this kind of business on the Sabbath would be considerably greater than the proceeds received during the week. Consequently, opening one shoe store on the Sabbath exerts significant pressure on all the owners of shoe stores in the area to open their businesses and work on the Sabbath. The situation regarding places of entertainment is different: a person who sits in a coffee shop or goes to the cinema on the Sabbath will not, for that reason, refrain from sitting in a coffee shop or going to the cinema again during the week. Therefore, the loss caused to one who chooses to close his coffee shop on the Sabbath will not substantially influence his proceeds during the week” (Gidon Sapir, “’Vikaratem Lashabat Oneg?’ Avoda Mis-char Vibilui Bishabat Biyisrael Mekom Hamidinia Viad Hayom [‘And Call the Sabbath a Delight?’ Work, Commerce and Leisure on the Sabbath in Israel from the Founding of the State to the Present]”, 31 Mehkarei Mishpat 169, 222 (forthcoming 2017)).

  1. There is also a substantial difference from the point of view of the consumers. As noted, the social purpose supports the right of consumers who want to experience pleasure according to their viewpoints, belief and preferences. That is not the case concerning commercial activities. Commerce is concerned with buying and selling, its main point is financial profit, functional needs that are not related to rest or leisure. Furthermore, the functional nature of commercial activity is expressed, inter alia, in the fact that there is no advantage to engaging in shopping particularly on the day of rest. Making purchases at the grocery store or similar place can also be done before or after the Sabbath. That is different from activities of leisure and rest, which by their nature can take place particularly on the Sabbath, the day of rest, when all family members have stopped working together and are perfecting their rest with joint activities. I will clarify and emphasize: there is no doubt that opening commercial establishments on the Sabbath constitutes a significant addition of convenience for a broad community of consumers. That should not be dismissed at all. Convenience, while it is not a fundamental constitutional right, is not a vulgar word. A person’s desire to have the chance to buy milk and eggs and soy sauce (and also clothing and furniture) on the Sabbath is understandable and legitimate. However, that desire is not the whole story; hanging in the balance is also the fundamental right of the owners of the commercial establishments who want to stop their work on the day of rest. The addition of comfort likely to stem from commercial consumption on the Sabbath does not justify such significant harm to the small-scale merchants.
  2. Furthermore, excepting places of entertainment from the bounds of the prohibition set by Article 9A of the law allows the owners of places of entertainment – small and large, rich and modest – who choose to give up their weekly rest, to operate their businesses themselves, without relying on salaried employees. It should also be noted that the distinction between commercial establishments and places of entertainment is deeply rooted and accepted in the discourse about the image of the Sabbath in the State of Israel; it is not by chance that, for years, it has taken root in draft laws and various public contracts (Ruth Gavison and Yaakov Medan, Masad Liamana Chevratit Chadasha Bein Shomrei Mitzvot ViChofshiim Biyisrael [Foundation for a New Social Contract between the Religious and Secular in Israel], 223-237 (5753); Sapir, pps. 217-222; Elyakim Rubinstein and Noam Sohlberg, “Dat Vimidina Biyisrael Bishnat Hayovel [Religion and State in Israel in the Jubilee Year]”, Manhe Liyitzhak; Kovetz Mamarim Lichvodo Shel Hashofet Yitzhak Shilo Bigvurotav [Mediator for Yitzhak: Collected Articles in Honor of Judge Yitzhak Shilo in his Courage] 399 (eds. Aharon Barak and Menashe Shava, 5759), also printed in Elyakim Rubinstein’s book, Nitivei Mimshal Umishpat [Paths of Governance and Law[ 196, 214-218 (5763)).
  3. The key word: Balance – between the rest of the merchants and the rest of the consumers. It is not a perspective of “I won’t be party to desecrating the Sabbath” but also not a perspective of “I will buy milk and eggs on the Sabbath for spite”. “Live and let live,” my colleague said; and I say – “Rest and let rest”. How appropriate for our issue are the words of the Jewish-American philosopher and theologian, Abraham Joshua Heschel, in his monumental book, ‘The Sabbath’:

“Someone wishing to reveal the sanctity of the day is tasked with abandoning the alienation that exists in the vulgar commerce of life, and his being trapped under the yoke of his labor and sweat. He should walk far from the strident voices of the other days, from the tensions and greed of acquisition […] he should detach from his work, and understand that the world has already been created and will survive even without the help of humankind. Six days a week we wrestle with the world, wringing profit from the earth; on the Sabbath we especially care for the seed· of eternity planted in the soul […] Six days we strive to master the world, and on the seventh day we should be wise enough to master our selfhood” (Abraham Joshua Heschel, Hashabat [The Sabbath] 33 (trans. Alexander Ibn Hen, Yediot Ahronot 2003)).[SB1] 

 

On the Sabbath, the darling of days, we ‘should be wise enough to master our selfhood’ , to exit the trap of “the yoke of labor and swea[SB2] t’; so that we can relax, rest, and fulfill the words of the prophet Isaiah (58; 13) ‘And call the Sabbath a delight”, and to distinguish, as the law instructs, between commerce and pleasure.

  1. The subjective purpose of the above-mentioned law’s clauses, as clearly reflected in the legislative history; the reciprocal relationship between them over the axis of time; and also the objective purpose, which relates to the social considerations at the foundation of the Hours of Work and Rest Law – lead to the conclusion that the local authority does not have the power to order the opening of commercial establishments on days of rest.

 

In the Margins: The Reasonableness of Reasonableness

  1. At the heart of my opinion – the question of the power of local authorities to order the opening of commercial establishments on the Sabbath. Once I reached the conclusion that such authority does not exist, I need not address the question of the reasonableness about which my colleague expounded, but it is impossible to remain exempt, without saying anything. I will say only this: according to my colleague, the Minister of Interior’s position suffers from extreme unreasonableness, because it “did not appropriately consider the uniquely autonomous status of the Municipality” (see par. 25 [para. 24-trans.] of her opinion; emphasis added – N.S.). I saw the words of my colleague, the President, and I was reminded of the words of President (ret.) A. Grunis; his words are logical, and we should set them in our sights:

“The court’s expertise in general, and in the field of administrative law in particular, relates to questions of authority and procedural flaws [...] By contrast, the court has no special advantage or expertise on the subject of unreasonableness [...] the ground of unreasonableness has undergone a change and has almost developed into a kind of ‘supreme norm’ […] In the course of this development, it has swallowed up, like a person whose appetite is insatiable, specific grounds for judicial scrutiny that were recognized in the past (for example, the grounds of irrelevant purposes and irrelevant considerations). The great disadvantage of this ground in its current scope lies in its high degree of abstraction. The high degree of abstraction expands the role of judicial discretion and thereby increases legal uncertainty. It creates a huge disparity between its exalted position in the legal universe and its application in a concrete case […] Often use is made of the concept of weight in order to emphasize the concrete application of the ground of unreasonableness. Thus it has been said on more than one occasion that a decision will be set aside for unreasonableness even if the authority that made the decision took into account all of the relevant considerations, where it gave the wrong weight to one or more of the considerations that were taken into account […] Admittedly metaphors, such as weight, are an accepted tool of legal language. The imagery helps the court to analyze, develop its thoughts and convey the reasoning to the reader. At the same time, the use of metaphors may sometimes make the reasoning vaguer rather than clearer. The use of the image of weight in the context of unreasonableness admittedly helps to some extent. But we cannot ignore the fact that a determination of unreasonableness is almost entirely based on an examination of the end product, i.e., the outcome of the decision. In other words, the use of the metaphor of weight with regard to considerations that the competent authority making the decision took into account can sometimes, it would seem, be used to disguise disagreement with the result” (HCJ 5853/07 Emunah National Religious Women’s Movement v. Prime Minister, 62(3) PD 445 (2007), para. 9 of his opinion; See also the words of President M. Landau in HCJ 389/80 Dapei Zahav Ltd. v. Broadcasting Authority, 54(1) PD 421, 431-32, who as far back as nearly fifty years ago expressed his concern about the misunderstandings that using the concept of reasonableness risked creating).

  1. Reasonableness has many faces, and what is appropriate also depends on the eyes of the beholder (HCJ 43/16 Ometz Movement: Citizens for Good Governance and Social and Legal Justice v. Government of Israel [unpublished], para. 15 of my opinion (March 1, 2016). What one might consider to be extremely unreasonable is seen by another as reasonable and appropriate. That is true in general, and specifically when the issue at hand is value-laden and general, part of a long-running public discussion. Our issue is proof of this. We should continue to strive to focus the cause of reasonableness into minute details, into standards, and even to clip its wingspan, as part of a trend “to dispel the cloud of vagueness, to add to clarity and to constrict the space of uncertainty in which reasonableness lives, also in a forward-looking way” (ibid).

 

The Social Purpose as a Bridge

  1. We cannot conceal the truth. The argument over the image of the Sabbath is profound, ideological, principled. That is true of additional issues concerning the relationship between religion and state and the fundamental values of the State of Israel as a Jewish and democratic country. No side is willing to give up on its holy of holies – religious holiness or secular ‘sanctity’. There is a reason I sought to rely on the important words of my colleague, the President, in her opinion (see para. 28 ibid [para.27-trans.]), regarding the principled approach that should guide our path. Doing so can illustrate that the dispute between us is not broad, deep and principled as might otherwise seem. We do not disagree on the point of departure: there is no perspective of ‘all or nothing’, ‘black or white’, but rather tolerance for a different opinion and mutual concessions. We will not obscure the dispute between us – over authority and reasonableness and interpretation, but we neither will we exaggerate it; this is not “religious” against “secular”, “north” against “south” or periphery against “the State of Tel Aviv”.  I wrote at length above about the social purpose, one of the two purposes at the foundation of the Hours of Work and Rest Law. I think that reasonableness can unite all of them, without paying the price of giving up on religious or secular ideology. On the issue of the Sabbath, rather than serving as another bone of contention, the social-societal consideration can act as a cornerstone of agreement.

Epilogue

  1. Prohibiting work on the Sabbath under Article 9A of the Hours of Work and Rest Law applies to commercial establishments but not to places of entertainment; the prohibition is not merely personal but rather applies to the fact of commerce in the shop; the Authorizing Law does not grant power to the local authority to order the opening of commercial establishments. From my point of view, therefore, the motion for a further hearing – should be granted.

 

Justice

Justice E. Hayut

  1. In the verdict that is the subject of this further hearing, I joined the opinion of my colleague, President M. Naor, that there is no flaw at the level of authority or discretion that justifies intervening in the By-Law of Tel-Aviv-Jaffa (Opening and Closing Shops) (Amendment No. 2), 5774-2014 (hereinafter: Amendment No. 2). Hearing the arguments that the parties raised again in the further hearing has not changed my mind.
  2. The Law Amending the Municipalities Ordinance (No. 40), 5751-1990 (hereinafter: the Authorizing Law) applies, also to days of rest, the power granted to the local authority under Article 249(2) of the Municipalities Ordinance [New Version] (hereinafter: the Ordinance) to regulate “the opening and closing of shops, factories, restaurants, coffee shops, tea houses, drinking establishments, cafeterias, canteens and other institutions of this kind, and of cinemas, theaters and other places of public entertainment or a type of it”. Thus the Authorizing Law anchored the special-autonomous status of the authority also concerning days of rest, and allowed it to use by-laws, according to its discretion, to shape activity in the public sphere on these days, within its area of jurisdiction. As early as 1993, this court, in the opinion of President Shamgar, addressed the significance of the Authorizing Law and the bounds of the power it imparts to the local authority (HCJ 5073/91 Israel Theaters Ltd. v. Netanya Municipality, 57(3) PD 192, 207 (1993), hereinafter: the Israel Theaters Case and also see on this issue para. 28 [para. 27-trans.] of the opinion of my colleague, the President).

My colleague the President repeated and emphasized these words when she noted that “the authority to make the value judgment within the framework of the by-laws belongs to the Municipality, not to the Minister of Interior.The Minister of Interior should not evaluate whether that judgment is optimal, in his opinion, but rather whether it is within the zone of reasonableness …A decision by the Minister of Interior is intended to supervise the lawfulness of a decision by the Municipality, not to replace its discretion” (para. 29 [para. 28-trans.] of her decision. I share this position. For the reasons my colleague the President detailed in her opinion, I also take the position that the Hours of Work and Rest Law, 5711-1951 (hereinafter: Hours of Work and Rest Law), including its Article 9A(a) does not address the question of opening and closing businesses on the day of rest but rather with the personal question of work on that day. Therefore, to my way of thinking, we don’t find within the Hours of Work and Rest Law a prohibition on opening businesses on the day of rest, and in any event there is no clash between its provisions and the provisions of the Authorizing Law and the by-laws that were enacted pursuant to it.

  1. In his decision to grant the motion for a further hearing, Deputy President E. Rubinstein (ret.) noted that “the Sabbath, whose status in the Jewish world needs no elaboration, deserves to have its case considered and clarified when all positions are before the Court”.

Indeed, the Sabbath has been adorned with many crowns, and there is a special place reserved for it in the heart of every Jewess and Jew, even if they do not fulfill the commandment of observing the Sabbath according to Jewish law. The national poet H.N. Bialik said about the Sabbath that “it is the most genius invention of the Hebrew spirit” (Sefer Hashabat [Book of the Sabbath] (Dvir Publishers, 5708, p. 517)) (hereinafter: Book of the Sabbath), and many others have reified the wonderful blending of religious values and social values (Book of the Sabbath, p. 521; Leave App Crim Handyman Do It Yourself Ltd. v. State of Israel, 57(3) PD 1, 6 (2003)). But with its founding, the State of Israel raised the banner of Jewish and democratic values together, and the need to integrate the state’s Jewish contours with its democratic contours requires us to walk the path of balance and compromise. That is the case in general, and that is the case regarding the Sabbath.

  1. In the Israel Theaters case, President Shamgar addressed the purposes at the foundation of the Hours of Work and Rest Law:

“In establishing the principle of observing a weekly day of rest and designating it on the Sabbath, the legislator sought to achieve two integrated goals: first, a social goal, that a weekly day of rest should be designated for each person to rest from his work, spend time with his family or in the company of friends and have time for holiday and entertainment, according to his choices and preferences … second, designating the day of rest on the Sabbath takes place against the background of the commandment of religious law and Jewish tradition” (ibid, 206-207).

The effort to integrate these two goals, while allowing certain economic activity for places of entertainment and commercial establishments on the days of rest, as well, was expressed in the Authorizing Law. According to this law, as noted, the local authority was imbued with power to order, inter alia, “the opening and closing of shops and workshops…” on the days of rest, but it was emphasized that the authority must exercise this power while taking into consideration “reasons related to religious tradition” (arts. 249A(20) and (21) of the ordinance). The legislator thus did not completely prohibit the local authorities from regulating the opening and closing of shops and workshops on the days of rest but outlined for them a clear standard of consideration for reasons related to religious tradition, and in doing so chose the path of balance and compromise (see para. 31 [para. 30-trans.] of the opinion of my colleague, the President). My colleague Justice Sohlberg seeks to establish the balance point in this context as the distinction between places of entertainment and commercial establishments. However, this distinction has no basis either in the text of the Authorizing Law, and as my colleague the President described so well, or in the law’s legislative history. It therefore cannot be accepted. Having said that, I accept the position that we should be very cautious with provisions that permit the opening of shops and workshops on the days of rest, and that provisions that allow that with “too generous a hand” risk upsetting the delicate balance that must be preserved in this context between the State’s Jewish values and its democratic values.

  1. In his opinion that was submitted to us at the stage of the further hearing, the Minister of Interior expressed concern over creating a precedent that would create a fissure in the status quo and change “the appearance of the Sabbath and its character throughout the country”. First, I note that there is merit in the ruling of my colleague, the President, that this is a decision that was not submitted and in any event was not addressed in the procedure that is the subject of the further hearing (see paras. 17-20 [paras. 16-19-trans.] of her opinion). For that reason, I doubt that we can address it now. However, even on the merits of the issue, I did not find a justification, under these circumstances, for the concern that the minister expressed in his decision over a sweeping infringement on the appearance of the Sabbath and its character at the national level, to the point where he would believe there is cause for invalidating Amendment No. 2 of the Tel-Aviv Jaffa [sic] Ordinance. That is the case, given the very limited scope of the sites and the businesses whose opening was permitted in Tel Aviv on the Sabbath, both according to Amendment No. 1 and according to Amendment No. 2, which exemplify a reasonable and proportional balance between the existing interest in observing the character of the Sabbath as a day of rest while allowing for the possibility of some economic activity that suits the city’s character, with its various neighborhoods and its diverse population.

For these reasons, I concur with the position of my colleague, the President, in the further hearing as well.

                                                                                                                                Justice

 

Justice D. Barak-Erez

  1. Should we respect the choice of the Tel Aviv-Jaffa Municipality city council to amend its by-law in such a way as to allow the opening of grocery stores on Sabbath days holidays? That, in essence, is the question that again was placed before us. That – and not additional questions, although additional questions were wound up in the parties’ arguments. As I noted in the verdict that is the subject of the further hearing, we are not addressing the question of whether, at the level of norms and viewpoints, we should prefer arrangements that take the side of broadly closing businesses on the Sabbath or those that regulate ways of opening them. We are also not addressing the question of what is the optimal application of the national and social ideal of the Sabbath. I believed in the past, and I still believe, that we should respect the decision of the city council, and allow the value-laden dispute in the background to continue to take place in the arena that is appropriate for it – the public arena. For that reason, I concur with the opinion of my colleague, the President, also in the further hearing, and for the reasons she provides. Having said that, in light of the dispute that has erupted between my colleagues, Justices N. Hendel and N. Sohlberg and the rest of the colleagues on the panel, and while focusing on the question of the authority of the municipality to permit the opening of stores on the weekly day of rest, I seek here to present the details of my position.

 

Further Hearing and Not a Retrial

  1. Before I dive into the merits of the issue, I will add that, like my colleague, the President, I also think it important to be punctilious in not permitting a further hearing of a verdict to become a platform for a retrial. Finality in litigation is an important value in our system, and actually in every legal system. That is particularly important, in light of the fact that giving a government agency a chance to present a new position, that would be addressed on the merits after the legal proceedings have ended risks incentivizing strategic behavior – at first presenting one position, and if it is not accepted, it can present another position.
  2. Truth be told, I agree with my colleague, the President, that this reason is sufficient to justify denying the motion for a further hearing. However, given that the scope of discussion has been broadened, I will continue and also address the merits of the issue. However, it is important to emphasize that the reasons behind the late decision of the Minister of Interior should not be at the center of the discussion, but rather the question of the lawfulness of the Tel Aviv-Jaffa’s by-law, including its amendments – both in terms of authority as well as in terms of discretion.

 

A Municipality’s Authority to Permit the Opening of Businesses on the Sabbath

  1. The petitioners’ arguments in the further hearing were largely based on the legal position that Article 9A of the Hours of Work and Rest Law, 5711-1951 (hereinafter: the Hours of Work and Rest Law) should be interpreted to completely prohibit activities by businesses belonging to the category of “shops” on the Sabbath, and therefore, in any event, the authority of the municipality to permit the opening of businesses would be limited to regulating the opening of places of leisure and recreation – hotels, restaurants and cultural institutions – what are often called “places of entertainment”. My colleague, the President, rejected this argument. In contrast, my colleagues, Justices N. Hendel and N. Sohlberg, reached a different conclusion on this issue. According to them, a reading of Article 9A of the Hours of Work and Rest Law reveals that the law creates a prohibition on the activities of shops, workshops and factories on the Sabbath. My colleague, Justice Hendel, believes that the resulting conclusion is that the local authority has extremely limited discretion to permit businesses to open on the Sabbath, while the Minister of Interior has broad oversight powers over its decisions on the issue. My colleague, Justice Sohlberg, takes the point even further, finding that the municipality acted ultra-virus and lacks the authority to permit the opening of businesses in the category of “shops” on the Sabbath.
  2. In this dispute, I agree with my colleague, the President. I believe, with all due respect, that the opposing position does not reflect the correct interpretation of the Hours of Work and Rest Law – neither in terms of its text and legislative purpose, nor in terms of its relationship to other provisions in the very same law and to provisions of the Municipalities Ordinance [New Version] (hereinafter: Municipalities Ordinance or the Ordinance), and not even in terms of its legislative history. When it is evaluated more broadly, including, inter alia, the way people have understood the law to amend the Municipalities Ordinance (No. 40), 5751-1990, known as “The Authorizing Law”. I will explain my position.
  3. In order to address the interpretation of Article 9A of the Hours of Work and Rest Law, whose caption is “
  1. On the prescribed days of rest, within the meaning of the Law and Administration Ordinance,, 5708-1948, the owner of a workshop of [sic] industrial undertaking shall not work in his workshop of undertaking and the owners [sic] of a shop shall not do business in his shop
  2. On the aforesaid days of rest, a member of a cooperative society shall not work in a workshop or industrial undertaking of the society; a member of an agricultural cooperative society shall not work in a workshop or industrial undertaking of the society unless the work is connected with the services necessary for its farm.
  3. A non-Jew may, in respect of his workshop, industrial undertaking or shop situated in the area of a local authority whose non-Jewish inhabitants, according to the determination of that authority, are at least 25 per cent of its total population, observe the prohibitions imposed by this section, at his option, either on the aforesaid days of rest or on his own Sabbath and holydays. The same shall apply in a quarter of a local authority if the area and the proportion - not less than 25 per cent - of the non-Jewish inhabitants of that quarter have been determined for this purpose by that authority.
  1. The opposing view focused on the provision that says “the owner of a shop shall not do business in his shop”. According to this position, the prohibition set in Article 9A applies to activity in the business in general, in contrast to the activity of the shop owner himself on his weekly day of rest. We disagree with that.
  2. A reading of the Law of Work Hours and Rest sharpens the clear distinction that it contains between the terms “will work” and “will employ”. The law ordinarily regulates the issues of employers and their employees.  In contrast, there are prohibitions on someone who is a shop owner to “employ” workers through a formula that deviates from the law’s dictate. The law therefore clearly distinguishes between the “work”, which is the activity of the worker himself, and the “employment”, which is the employer’s part of it. Accordingly, Article 9A of the law says that the owner of a workshop and the owner of a factory shall not “work” in his workshop or factory – “shall not work”, and not “shall not employ”.
  3. Against that background, I think that Article 9A was intended to extend the obligation of rest on Sabbath days and holidays to non-salaried workers, including workshop owners and shop owners (see: HCJ 347/84 Petah Tikva Municipality v. Minister of Interior, 39(1) PD 813, 821 (1985) (hereinafter: Petah Tivka Municipality case). In other words, the legislator sought to take care of independent business owners by imposing an obligation of rest on them, to take care of them and their family members, too, as it had already done in regulating this forced rest (as a welcome personal arrangement) for salaried employees. From that alone we should not conclude that the legal provision is intended to require the absence of activity in the business itself. Indeed, pursuant to the reality at the time the legislator enacted the law, namely that most commerce was retail commerce, and workshops were mostly small, the Sabbath rest of the owner of the business would be expected to end the operation of the business itself. That is even, from my point of view, a result that in many cases brings a social blessing. However, from a legal point of view, it is not a necessary outcome.
  4. In my opinion, this interpretation is required not just by the text of Article 9A of Hours of Work and Rest Law, but also by its purpose. As we know, the Hours of Work and Rest Law is, first and foremost, a protective labor law whose purpose is to regulate the rights of workers and to guarantee their rest, whether they chose it or not (see: HCJ 6522/06 Kochavi v. National labor Court in Jerusalem [unpublished], para. 17 (April 22, 2009); FH HCJ 10007/09 Glutan v. National Labor Court [unpublished], para. 11 of then-Justice S. Jubran’s opinion (March 18, 2013)). Broad areas of regulating the national character of the Sabbath deviate from the bounds of this law, and that is without detracting from the national-identity purpose of the law, which is expressed in the choice of Sabbath days and Jewish holidays as the primary days of rest (See Leave App Crim Handyman Do It Yourself Ltd. v. State of Israel, 57(3) PD 1, 6 (2003) (hereinafter: the Handyman case); HCJ 5026/04 Design 22- Shark Deluxe Furniture Ltd. v. Director of Sabbath Work Permits Department – Ministry of Labor and Social Affairs, 60(1) PD 38,  (59) (2005) (hereinafter: the Design 22 case).
  5. My colleague, Justice Sohlberg, cited statements made during the process of enacting Article 9A of the Hours of Work and Rest Law, with the goal of understanding its subjective purpose. However, I think that a complete reading of the debates that took place in the Knesset and the committees raises a more complex and even different picture. Of course, legislative proceedings always include many speakers and participants, and in any event some of the participants’ statements in the debates express their own positions and do not necessarily indicate the “legislative intent” (see: Aharon Barak, Parshanut Bamishpat – Parshanut Hahakika [Interpretation in Law, Legislative Interpretation] Vol. 2, 265 (1993) (hereinafter: Legislative Interpretation).  That is particularly true when we are dealing with a subject that is in social-public dispute such as the subject of the Sabbath, such that the Knesset debates over it reflect a broad spectrum of positions (for more on this, see Gidon Sapir, “’Vikaratem Lashabat Oneg?’ Avoda Mis-char Vibilui Bishabat Biyisrael Mekom Hamidinia Viad Hayom [‘And Call the Sabbath a Delight?’ Work, Commerce and Leisure on the Sabbath in Israel from the Founding of the State to the Present]”, 31 Mehkarei Mishpat 169, 173-184 (2017) (hereinafter: Sapir)).
  6. Even before I address statements made during the debates, we should begin with the draft law’s explanatory notes, where it is explicitly written that “the Hours of Work and Rest Law … currently applies to salaried employees only. The proposed amendment seeks to apply its provisions regarding days of rest to factory owners, members of cooperative societies and shop owners, too, with certain caveats” (Explanatory Notes for the draft Hours of Work and Rest Law (Amendment), 5726-1966, HH 136). If that is so, the explanatory notes of the draft bill that includes Article 9A establish, as noted, that the intent of the legislator was to apply the law to independents, as well. That – and no more. There is no mention of broader aspects of ceasing the activity of businesses on the Sabbath as an objective in itself.
  7. My colleague quoted the words of then-Minister of Labor Yigal Allon, in the Knesset plenary at the time he brought the amendment that included Article 9A for a first reading. My impression is that reading the statements made by Minister Allon in the plenary can actually indicate the emphasis that Article 9A puts on regulating employment and not the opening of businesses: “I am satisfied that this time I can submit to the Knesset a bill that can expand the application of the obligation of rest on additional kinds of workers, without violating the status quo regarding religion” (D.K. 5726, 2157). He went on to say: “While at the start of this century, there was a conception that labor laws are intended to protect only manual wage laborers, this conception has expanded, and there is no dispute today that the state should extend its protection to every worker as such – a manual laborer and an office clerk, a wage laborer and an independent contractor” (ibid. Emphasis added). This language, which presents to the reader the employee and the employer – and not the business – is, as noted the same language used in the Hours of Work and Rest Law itself, and it is the language that is compatible, as explained, with law’s objective purpose as a protective labor law.
  8. This conclusion becomes stronger/more plausible when we examine statements by Adv. M. Harniv, the legal advisor of the Ministry of Labor, during the debates over the amendment in the Knesset Labor Committee. For example, he explained: “In bringing this law before the Knesset, the Minister of Labor did not hide the fact that this law is an outcome of the coalition agreement; having said that, he added that the law is part of the development of labor legislation throughout the world. If labor legislation was initially intended to protect the wage laborer, as time passed, the perspective that the independent contractor should also be protected developed further and further. Article 9 of the original law prohibits employing a worker on his day of rest, and this draft law seeks to impose such prohibition on the independent contractor as well” (Transcript of the Knesset Labor Committee of November 16, 1966). In my opinion, the following statement of his is particularly enlightening:

“When I debate this law I look at it as a social law and not just as a religious law. That was the foundation, and I participated in coalition negotiations over it, and I know. In many other previous governments, there was a coalition agreement that promised to enact a “Sabbath law”. In this law, the word “Sabbath” is not even mentioned. And when it was agreed upon, the Minister of Labor required two things: first, that if this is a Sabbath law and a religious law, why does it have to be part of the Hours of Work and Rest Law? And second – then the Minister of Religious Affairs would have had to be responsible for it … I call your attention to the fact that this law does not discuss the Sabbath but rather the weekly day of rest … it’s a social law. As we do for salaried employees, that is how we shall do for independents, who are also workers. From the point of view of the national legislation, they will have a day of rest” (Transcript of Labor Committee of July 3, 1968).

  1. My colleagues, Justices Hendel and Sohlberg, find support for their interpretation in Article 9A(c) of the Hours of Work and Rest Law, which forbids a non-Jew from opening his shop on the Sabbath in an area where there is a decisive Jewish majority. For them, that article indicates the legislator’s intention not to allow the opening of businesses in Jewish areas on Saturdays, even if those who work in the business as a practical matter are not Jewish. I do not think that the above resembles a piece of evidence. At the heart of those words, there could be an alternative explanation to the one that my colleagues propose, one that is based on simple market logic. What does that mean? In my opinion, with Article 9A(c), the legislator sought to prevent a situation in which the “vacuum” created in a certain area – in which all the Jewish-owned businesses were closed on the day of rest – would be exploited by non-Jewish business owners, who are not required, under the law, to stop working on the day of rest (See, e.g. statements by Member of Knesset T. Sanhadrai in the transcript of the Labor Committee of November 22, 1967).
  2. As an aside, I will note that I do not agree with my colleagues’ position regarding the interpretation of the term “shop” as it appears in Article 9A of the law. For them, this term is limited to businesses that sell products, as opposed to places of entertainment. It would appear difficult to interpret Article 9A as necessarily intending to refer to a “shop” in the narrow sense. This interpretation is inconsistent with the social purpose of Article 9A, because it leaves open the question of whether it applies to many other businesses that are not a “shop” in the narrow sense and are not a “workshop” or “factory”. What about offices that supply professional services such as accounting, legal representation or medicine. Are they workshops? Or should we say that the prohibition does not apply to them at all? Furthermore, I believe that the positions presented regarding the interpretation of the term “shop” in the statements made during the legislative debates do not necessarily express the appropriate interpretation of that term, primarily if we pay attention to the fact that repeated requests to add a definition of that term were repeatedly rejected, deliberately, inter alia, for reasons that were defined as “relating to the governmental coalition” (See, e.g. D.K. 5729 1904). In any event, I do not think we need to address the full range of the above-mentioned aspects in our case, given the conclusion that Article 9A of the law does not include a prohibition on opening businesses on the Sabbath, but rather imposes restrictions on the work of those for whom it is their weekly day of rest, including the business owners themselves.
  3. Similarly, I want to point out that the interpretation proposed by the opposing position puts the Hours of Work and Rest Law on a direct collision course with the Authorizing Law. As we know, Article 249(2) of the Ordinance imparts the local authority with power to regulate “the opening and closing” of shops, workshops, places of entertainment and additional institutions, and “to determine … their opening and closing hours on any given day”. Article 249(21) of the Ordinance adds and explicitly clarifies that the local authority may exercise such power in respect of the weekly day of rest, too, taking into consideration reasons of religious tradition. My colleagues tried to resolve this difficulty through various interpretive paths. I think the solution is much simpler: there is no contradiction between the Hours of Work and Rest Law and the Municipalities Ordinance, and in any event there is no interpretive tension that needs to be bridged. Article 9A of the Hours of Work and Rest Law is a protective law that guarantees the Sabbath rest for those who work as independent contractors, while the Municipalities Ordinance regulates the scope of what is permitted for opening businesses, and each of those kingdoms remains within its own domain.

 

The Post-Legislative History: Implementation of the Law Throughout the Years and New Proposed Laws

  1. In addition to the aforesaid, I want to emphasize that the interpretation of Article 9A of the Hours of Work and Rest Law cannot be done as if we were reading a blank slate. As we know, as part of the method of purposive interpretation, we should examine the legislative history of a piece of legislation. In that context, one examines both the pre-legislative history (the legal and social background that led to the act of legislation, as well as the stages that the law passed on its way to enactment) and the post-legislative history, meaning the events that occurred after the act of legislation that are relevant to it (See: Barak, Legislative Interpretation, pps. 351-352).
  2. We have in the record decades in which the Hours of Work and Rest Law has been discussed and implemented in the rulings of this court. In each case, the legal proceedings were based on the fundamental assumption that the Hours of Work and Rest Law does not per se prohibit opening businesses on Saturdays and holidays, in contrast to employing workers on their days of rest in these businesses (See, e.g., the Petah Tikvah Municipality case, pps. 821-822). Thus, in the two central judgments in which this court addressed arguments against the prohibitions on employing salaried workers on the Sabbath – the Handyman case and the Design 22 case – the proceedings were entirely based on the assumption that it is possible to operate the business itself, and the discussion was over the restriction on employing Jewish workers in the business on the day of rest. This state of affairs becomes clearer, as noted, if we examine the Bremer  case, in which most of the judges on the panel concurred with the result, including then-Justice E. Rubinstein, who granted the motion for a further hearing in this case. The Bremer case essentially referred the leaders of the Tel Aviv-Jaffa Municipality to enact a new by-law that would take a clear position about the operation of businesses on the Sabbath (ibid, paras. 52-56 of then-Deputy President Naor’s judgment). Was that ruling intended to direct the city’s leaders toward a path that is blocked in advance? I would be astonished if that were the case.
  3. It is worth noting that many of the petitioners for the further hearing, who reified the argument based on the interpretation of Article 9A of the Hours of Work and Rest Law, were essentially the appellants in the Bremer case. Despite that fact, they did not move for a further hearing after the verdict in case and did not argue that directing the Tel Aviv-Jaffa City Council toward the path of enacting a by-law regarding the operation of businesses on the Sabbath was a new and difficult precedent, which allegedly contradicts the law, as they are arguing now. This kind of procedural conduct would seem to arouse wonder and even discomfort. In contrast to an appeal, which can be filed only by one who wants to challenge the operative result of the verdict, a motion for a further hearing is intended to restore the law to its proper path.
  4. Furthermore, we should note that interpreting Article 9A to completely prohibit opening businesses on the Sabbath is inconsistent with the practice in which local authorities have engaged for many years. Many authorities – excluding the Tel Aviv municipality – enact by-laws pursuant to their authority under the Municipalities Ordinance in which they regulate the issue of opening and closing businesses on the Sabbath (for more on this, see: Gidon Zaira and others, Achifat Hahoraot Bidvar Ptichat Asakim Visgiratam Bimei Hamenucha Al-Yidei Harishuyot Haekomiot [Enforcing the Provisions on Opening and Closing Businesses on Days of Rest by the Local Authorities] (Haknesset, Research and Information Center, 2014)). Without addressing the question of the intensity of the enforcement of these laws – which is a separate question – one wonders why many local authorities need to regulate, in detail, the question of closing and opening businesses on the Sabbath using by-laws, if the assumption is that in any event the law sweepingly prohibits it? In my opinion, that fact demonstrates that the above-mentioned interpretation does not reflect the consensus among the local authorities.
  5. It is worth noting that an examination of the permits issued for work on the Sabbath under Article 12 of the Hours of Work and Rest Law (on the list available on the Ministry of Economy’s web site) indicates that in practice, these are permits for employing workers. Were the Ministry of Economy to instruct itself to follow the interpretation proposed ty the opposing position, each time it issued a permit for employment on the Sabbath, it would have had to issue, in parallel, a permit for the operation of the business itself – based on the assumption that employing a worker is like operating the business. It did not do so.
  6. Furthermore, the draft laws that were submitted in recent years seeking to adopt a clear distinction between the law that applies to businesses in the area of commerce and that applying to cultural and recreational institutions are all based on the assumptions that this is an innovation worthy of being introduced – as opposed to a reflection of the current legal state of affairs (see, e.g. Draft Law Weekly Day of Rest, 5776-2015, P/20/2112; Draft Sabbath Law, 5776-2016, P/20/3340. See also Sapir, pps. 230-231).
  7. We can say the same thing, with the necessary adjustments, about the way my colleague, Justice Hendel, relates to the principles outlined in the document called “the Gavison-Medan Contract”. This contract is a comprehensive proposal for a new status quo, which seeks to present a new compromise on issues of religion and state (see: Yoav Artsiali, Amanat Gavison-Medan: Ikarim Viekronot [Gavison-Medan Contract: Essences and Principles] (2003)). It has no normative force, and its fundamental assumption is that it does not reflect the current state of affairs. I say that without addressing the details, for example the fact that the document includes additional agreements regarding the Sabbath, such as limited operation of public transportation on the Sabbath (as part of a new social agreement on the subject).
  8. Having said all that, I believe that there is no basis for the argument that the interpretation of Article 9A in the President’s judgment is a “new” interpretation. In my opinion, the opposite is true: the interpretation on which the opposing position is based is an interpretation that is inconsistent with previous rulings and with the de facto conduct in the field.

 

On the Autonomy of the Local Authority and the Minister of Interior’s Supervisory Role

 

  1. If this is the case, I agree with my colleague the President that the local authority is authorized to regulate the issue of opening and closing businesses on the Sabbath within its jurisdiction, by enacting by-laws. We should evaluate the considerations that the Minister of Interior may consider regarding by-laws from the perspective of the general reciprocal relationship between the local government and the central government, as the legislation designs it, and for our case, primarily the Municipalities Ordinance.
  2. As is clear from the Municipalities Ordinance, the body that is tasked with establishing the organization of life in the municipality is the city council. This principle stems from the fundamental perspective viewing local authorities as the governmental bodies that express the autonomy of the community and democracy that has enhanced representative mechanisms (See further: HCJ 3791/93 Mishlev v. Minister of Interior, 47(4) PD 126 (1993); HCJ 953/01 Solodkin v. Beit Shemesh Municipality, 58(5) PD 595, 620 (2004) (hereinafter: the Solodkin case) and the references it contains; Itzhak Zamir, Hasamchut Haminhalit [Administrative Authority], Vol. 1 446-447 (2nd expanded ed. 2010)). In contrast, the Minister of Interior has an oversight function, which is supposed to reflect protection of the general public interest, but not to replace the municipality’s discretion at the outset (HCJ 7186/06 Malinovsky v. Holon Municipality [unpublished], paras. 60 (December 29, 2009) (hereinafter: the Malinovsky case)). As I noted in the verdict that is the subject of the further hearing – “the Minister of Interior’s decision is supposed to oversee the lawfulness of the of the authority’s action, to ensure that it is not tainted by aspects of negative externalities vis a vis other authorities, and to give expression to the system’s common values (subject to the principle that their implementation is not supposed to be uniform throughout the entire country)” (ibid, para. 3 of my opinion). I will therefore seek to repeat what I wrote in this context and to clarify it.
  3. One of the clear aspects necessary for the Minister of Interior’s oversight relates to the required coordination between local authorities and cooperation between them. This is coordination that can be termed horizontal coordination. Thus, for example, there is a concern over unfair competition between authorities, which would require intervention by the minister. Indeed, such competition could have positive aspects, in the sense of allowing people to choose among different and diverse services that each authority offers, according to their preferences and how they wish to shape their lives (See: Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. Pol. Econ. 416 (1956); Ishai Blank, “Mikomo Shel Ha’mekomi’: Mishpat Hashilton Hamekomi, Bizur Vi-I Shivyon Merchavi Biyisrael [The Place of the ‘Local’: the Law of Local Government, Decentralization and Spatial Inequality in Israel”, 34 Mishpatim 197, 208-210 (2004) (hereinafter: Blank)). However, having said that, competition between authorities has certain limitations, considering, for example, the difficulties related to moving between them and information gaps regarding the attributes and character of a particular local authority (See, e.g.: Blank, p. 209). I have written in the past that action within a competitive paradigm can lead to a situation in which a local authority will avoid weighing broad considerations, for example considerations of distributive justice at the regional or even national level (See e.g. HCJ 7425/09 Tuttnauer Ltd. v. Minister of Interior [unpublished], para. 31 (January 3, 2013). An additional concern that arises in this context is about externalizing the costs of one authority to another (ibid, paras. 32-25). In that vein, in our context, we might imagine a difficulty wound up with the fact that a municipal council might order the opening of businesses on the Sabbath particularly close to a quiet residential (or even religious) neighborhood of another city, in such a way as to infringe on the quiet it enjoys or to influence its character. The Minister of Interior’s broad gaze can prevent such situations.
  4. On another level, it is important to consider the question of whether this is an area in which both the local and central governments have been granted authority to act in parallel. This is coordination that can be termed vertical coordination. Addressing issues of security and public order is an example of an area of this type. Local authorities are authorized to act in this area to a certain extent (pursuant to Article 249(29) of the Municipalities Ordinance), but that is also a core area of activity for police and other security agencies belonging to the central government. If that is the case, where parallel authority exists for the local government and the central government to regulate a particular area, there is space for the Minister of Interior to exercise his supervisory power.
  5. Having said that, there are areas whose regulation is primarily assigned to the local authority, and for these, one should accord substantial weight to its autonomous space. Designing the local authority’s public space is a clear example of an area in which one should, to a great extent, cede to the local authority, because it is close, double-meaning intended, to the residents and the environment in which they live, and can express human diversity (See: Blank, p. 211). It is not by chance that the legislator chose to authorize the local authorities to regulate various areas concerned with religion and state, as will be detailed below.

Arrangements for Opening Businesses on the Sabbath from the Perspective of the Authorities’ Autonomy

  1. Further what has been said thus far, the legislator’s choice to impart the local authorities with the authority to regulate the opening of businesses on days of rest was not made unintentionally. It reflects the historical complexity of the relationship between religion and state in Israel. As far back as the founding of the state, Israeli society struggled to reach comprehensive arrangements in the area of Sabbath observance, and therefore it was decided to set a number of framework principles, but to leave great space for decisions reflecting local tradition – instead of setting a general governmental policy. In essence, this choice of the legislator is based on the traditional perspective that views the issue of opening and closing shops on Sabbath days and holidays as a primarily local issue (See: Crim App 858/79 Lapid v. State of Israel, 44(3) PD 386 (1980)), except for certain kinds of businesses, such as gas stations (See Crim App 217/68 Izramex Ltd. v. State of Israel, 22(2) PD 343 (1968)). In that, it differs from the choice that characterized the regulation of other subjects related to the Sabbath, such as oversight of public transportation (See: Article 71(7A) of the Transportation Ordinance [New Version] and Regulation 386A of the Transportation Regulations, 5721-1961).
  2. It is worth noting that this choice of delegating decisions to the local level also characterized, at least in the past, additional areas of regulation that relate to issues of religion and state. We can see a prominent example of this in the authorization to enact local municipal ordinances on the subject of the pork prohibitions under the Local Authorities Law (Special Authorization), 5717-1956 (see the Solodkin case on page 620). See also: Dafna Barak-Erez, “Gilgulo Shel Chazir: Mesemel Leumi Liinteress Dati? [The Evolution of Pork: From a National Symbol to a Religious Issue?]”, 33 Mishpatim 403 (2003); Dafna Barak-Erez, Chukim Vichayot Acherot [Laws and Other Animals] (2015)). In truth, the legislators had in mind the success of this bizarre model in the symbolic area of pork prohibitions when they sought to establish an additional authorizing provision concerning by-laws on the subject of the Sabbath, thirty years later.
  3. Nothing said here detracts from the recognition that the issue of the Sabbath has an important national aspect. This recognition is integrated in the view that there are subjects that have both local aspects and national aspects (See generally: Yisachar (Isi) Rosen-Zvi, “Mahuto Shel ‘Hamekomi’ – Hirhurim Al Mekomiut Biakvut Bagatz 10104/04 Shalom Achshav v. Yosef [The Essence of the “Local” – Musings on Locality Following HCJ 10104/04 Peace Now v. Yosef]”, 12 Mishpat Umimshal 333 (2010). Similarly, we are not holding that the central government has no authority to intervene in regulating activity on the day of rest. As noted, there is no absolute partition between “local” areas and “national” areas, and we can imagine extreme cases in which the local authority’s decision would give so little weight to the general-national consideration in the framework of the balancing it conducts, that the minister’s intervention would be justified. Thus, for example, the broad perspective of the central government could be expressed in the cases in which the local authority completely ignores the national value of observing the Sabbath as a day of rest. However, that is not the case before us, and it is even far from it.
  4. My colleague, Justice Hendel, says that the uniqueness of the subject of the Sabbath justifies regulating it at the national level, as opposed to the local level. That is a possible approach. However, we can also imagine an approach that says that actually, the difficulty in reaching a decision on this issue at the national level justifies decentralizing the decision to the different communities. In any event, that is currently the approach that the legislator chose for all that concerns opening businesses on Sabbath days (as opposed to the subject of employment during those days), and we must respect it.

Back to the Minister of Interior’s Updated Position

  1. Having said that, we return to the concrete issue before us. A reading of the Minister of Interior’s position that was submitted in advance of the further hearing indicates that it does not reflect the customary legislative hierarchy. Thus, the Minister of Interior presents an organized world view but barely addresses the local authority before us – the City of Tel Aviv-Jaffa – and its special characteristics. In essence, these characteristics are not mentioned or discussed at all, except for mentioning that, according to the formulation of the current by-law, sale of food is permitted in convenience stores, pharmacies and three distinct sites. The autonomy of the local authority essentially is treated only by way of negation: “I am not persuaded, despite the weight that should be given to respecting the autonomy of the local authority, that the by-law as proposed by the Tel Aviv Municipality justifies the infringement …” (para. 17 of the Minister of Interior’s Position). The local authority’s autonomy therefore remains a saying, even lip service, as opposed to a value that has actuality.
  2. The diminishing treatment accorded to the consideration of autonomy of the local authority in the Minister of Interior’s position is also expressed in the way it contrasts “need”, which is presented as a legitimate consideration, with the consideration of “will”. The position says that such will “is based on making the convenience of this or that arrangement a priority and nothing more (para. 13 of the Minister of Interior’s position). If that is so, the evaluation is purely instrumental – what is a “need” and what is “convenience”. There is no respectful mention of the fact that this is a choice of the community, who chose their public officials as the product of a political process that expressed debate and thought, and not just the will of the “residents”.
  3. If that is so, the approach that arises from the Minister of Interior’s position is that he is tasked with forming policy on the subject from a nation-wide perspective. This approach transgresses the legislative arrangement, and it is opposed to the point of departure we discussed above. I therefore concur with the conclusion that my colleague, the President, reached, namely that there was no room for the Minister of Interior to intervene in the by-laws that the Tel Aviv-Jaffa City Council enacted. In this context, I wish to note that I also concur with the words of my colleague, the President, regarding the cause of reasonableness (para. 58  of her opinion), following the comment of my colleague, Justice Sohlberg on this issue. As my colleague noted, I also think that the cause of reasonableness is a central and critical tool for exercising judicial review of the administration, and in any event, throughout the years, our case law has enshrined guiding rules for exercising and implementing it, while being scrupulous about respecting the space for the discretion that the authority has been given in law. These principles become even more important in cases in which the flaw in the activity of the local authority rises to the level of completely ignoring a relevant consideration (See and compare: FH HCJ 3299/93 Wechselbaum v. Minister of Defense, 49(2) PD 195 (1995).
  4. I will add that I do not see much in the concern that the Minister of Interior expressed, that authorizing opening shops in the city of Tel Aviv would become “the new standard” for opening businesses in other authorities, as well, in such a way as to redesign the character of the entire nation. There is no basis for thinking that all local authorities will necessarily rush to open businesses on the Sabbath, to the extent of what was decided in Tel Aviv. Each city has its own characteristics, and in that vein, we actually might expect variety in the decisions that will made on the issue. I will add, beyond what is necessary, that I personally believe that the public status of the Sabbath is strong in the hearts of many citizens in Israel. Why assume that this position will not be given serious consideration by public officials in the local authorities, each authority according to its characteristics?

 

On Social Justice and the Sabbath Rest

  1. We should acknowledge: Choosing to open businesses on the Sabbath is not devoid of dilemmas. The Sabbath is a national symbol whose status and dignity should be preserved in the State of Israel. Furthermore, the Sabbath rest is a precious social asset whose protection we should safeguard – in general, and especially for disempowered populations in the labor market. These arguments presented by the petitioners, who are thoroughly convinced of them, do not fall on deaf ears. However, as was explained at length, the Hours of Work and Rest Law chose to protect these values without establishing a sweeping prohibition on opening businesses on the Sabbath. I wish to add two important clarifications on this issue.
  2. First, protecting the special status of the Sabbath in the public space of the State of Israel is not the same thing as observing the Sabbath according to Jewish law. This is true not just regarding the operation of places of entertainment (recreational and cultural institutions and coffee shops and restaurants), as the petitioners noted, but also regarding opening other businesses.
  3. Second, the petitions did not lay out a sufficient factual basis for the argument that their position is essential for protecting disempowered workers. Indeed, it is possible that opening businesses on the Sabbath will expose disempowered workers to work on their weekly day or rest, against their will and in violation of the law. However, the way to combat that is by appropriate enforcement of labor laws. During the hearing, no real basis was presented for the argument that opening grocery stores on Saturdays in the scope defined in the municipal law would create a special risk for disempowered workers – more than do the many restaurants and coffee shops in the city or the hotels on its beaches, which operate on a broad scale on Saturdays. In these establishments, one should be scrupulous about the workers’ weekly day of rest, and the authorities should prepare for that. Furthermore: to the extent we are talking about protecting small business owners who struggle, as was argued before us, to withstand the competition of businesses open on the Sabbath, we should add and evaluate the weight of opening businesses on the Sabbath versus other economic pressures that may be larger, for example, competition with businesses that operate continuously. If that is so, we should protect the special place of the Sabbath, but some of the social struggles lie in other places. To a certain extent, one gets the impression that this is one of those cases in which the petitioners “are looking for the coin under the lamppost” and not in its place.

In Conclusion: An Historical Look at the Sabbath Arrangements in Tel Aviv

  1. As I briefly noted in my opinion in the verdict that is the subject of the further hearing, we cannot view the dispute before us disconnected from the historical continuum on which it is located. I think that evaluating the issues from that perspective as well indicates that we should not see in the by-law an expression of a process of “continuous erosion” of the image of the Sabbath, but rather an expression of a lively debate that has taken place throughout the years on this issue (on the different perspectives regarding the characteristics of the Sabbath day among the founding generations of the Zionist movement, see further: Tzvi Tsameret, “Mordim Vimamshichim – Itzuv Hashabat Lifi Y.H. Brenner, A.D. Gordon, G. Katzenelson, S.H. Berman, E. Schweid Vi M. Eyali [Rebelling and Continuing – Designing the Sabbath According to Y.H. Brenner, A.D. Gordon, G. Katzenelson, S.H. Berman, E. Schweid and M. Ayali]”, Hayashan Yitchadesh Vihaddash Yitkadesh – Al Zehut Tarbut Viyahadut, Asufa Lizichro Shel Meir Eyali [The Old Will Be Renewed and the New Will Be Sanctified – On Identity, Culture and Judaism, A collection in Honor of Me’ir Ayali] 347 (2005)). In the hearing before us, the beautiful and moving saying of Ahad Ha’am was repeated: “More than the Jewish people kept the Sabbath, the Sabbath kept them” (from his article, “Shabbat Tzionut [Sabbath and Zionism]”), which was also mentioned in the opinion of my colleague, the President. Specifically for that reason, it is worth mentioning the context in which those words were written, whose force was directed at the time against those who wanted to replace the Sabbath with rest on another day, and the author was lending his ear to the “voice of protest of the national sentiment against canceling the Sabbath”. They thus expressed opposition to canceling the national status of the Sabbath, and did not address the specific content of how it would be observed.
  2. These words also apply, with the necessary changes, to the City of Tel Aviv-Jaffa itself. The petitioners sought to present to us a picture of a “Tel Aviv status quo” based on consensus founded on a “division of labor” that distinguishes between opening places of entertainment on days of rest and opposition to opening other businesses. According to this narrative – opening grocery stores “broke” that agreed upon status quo, and that alone is reason enough to restore the situation to what it was. However, a deep examination of the issue exposes a much more complex picture. In essence, a historical look indicates that the appropriate scope of observing the Sabbath in the City of Tel Aviv-Jaffa was the subject of disputes as far back as the city’s early days, and that these disputes have continued to the present time. In essence, even opening places of entertainment and recreation was not without controversy. And I will emphasize that this is not merely an anecdote. Examining the subject from the perspective of a number of decades helps to better understand the issue before us.
  3. In my opinion in the verdict that is the subject of the further hearing, I addressed the fact that the first by-law limiting the opening of businesses on the Sabbath within the City of Tel Aviv was enacted during the British Mandate, as far back as 1926, and it was invalidated by the Supreme Court of the Land of Israel in 1928 (Attorney General v. Altshuler (1928) 1 P.L.R. 283). Afterward, an updated by-law was enacted on the subject of the opening and closing times of businesses in 1932. That by-law did not include restrictions on opening businesses on the Sabbath (By-Law Regarding Opening Shops Within the Jurisdiction of the Area of the Tel Aviv Local Council, I.R. 1932, Ann. 2, 225). The continued public debate on the issue led to its replacement in 1937 with another by-law that imposed limitations on opening businesses on the Sabbath and indeed distinguished between coffee shops and restaurants and shops (By-Law (Opening and Closing of Shops), 1937, I.R. 1937, Ann.2, 664. See also Y. Frankel, “Hashabbat Umoadei Yisrael Bamishpat Hai Bazman Hazeh [The Sabbath and Jewish Holidays in Israeli Law at this Time]”, 2 Haparklit 107, 110 (1945)). However, the by-law from 1937 also did not end the disputes on the issue, and did not bring about the total closure of commercial activity, of peddlers for example (See: Anat Helman, “Torah, Avoda Ubatei Café: Dat Vifarhasia Bitel-Aviv Hamandatorit [Bible, Work and Coffee Shops: Religion in Public in Mandatory Tel Aviv]”, Katedra 85 (5763); Anat Helman, Or Viyam Hakifuh – Tarbut Tel Avivit Bitkufat Hamandat [Sun and Sea Surrounded It – Tel Aviv Culture During the Mandate Period],  91-99 (2007)). It is worth noting that already at that time, public intellectuals such as Bialik did not approve of the characteristics of the public space in Tel Aviv on the Sabbath (ibid, p. 99). In essence, the disputes extended throughout the years, despite the opening of cultural institutions, and we recall in this context the decision of the mayor of Tel Aviv in 1979, barring the holding of a production in the Kamari Theater on the Sabbath eve (See: HCJ 11/79 Mirkin v. Minister of Interior, 33(1) PD 502 (1979)).
  4. This is not, therefore, a “state of nature” that was violated, but rather an ongoing public dialogue, and its internal balances change periodically, according to the times – and subject to the consensus that the Sabbath needs to be different and distinct from weekdays.
  5. These issues are noted here, of course, in brief, and the goal is just to show that we are not dealing with a rule and deviation from it, but rather a dynamic development of city life. As noted, our case is not a question of what is the correct way to mark the Sabbath in the State of Israel, but rather what can the local community determine for itself.

 

Looking to the Future

 

  1. From my point of view, concern over eroding the traditional image of the Sabbath in the public sphere in the State of Israel is out of place. These are more complex processes. It is well known, for example, that in residential areas in which the religious population is in a clear majority, there are restrictions on driving vehicles on the Sabbath and holidays, even if that was not the case in the past, because the composition of the population there was different. The legal arrangements reflect the current needs of society and its widespread points of view, together with preserving principles that do not vary with the changing winds. Having said that, the details may change, just as life itself changes. By-laws that negate the special status of the Sabbath would be out of place. However, there is certainly a place for by-laws that respect the Sabbath in different ways, commensurate with the local community’s ways of life. One should hope that the discussion of this subject will continue in the appropriate place – the public arena.

 

Justice

 

It was decided by majority opinion (President M. Naor and Justices E. Hayut, Y. Danziger, Y. Amit and D. Barak-Erez, against the dissenting opinion of Justices N. Hendel and N. Sohlberg), as stated in the judgment of President M. Naor, to deny the motion for a further hearing and to uphold the verdict that is the subject of the further hearing. No costs are imposed on the parties.

 

Decided today, 6 Heshvan 5778 (October 26, 2017)

President                            Justice                                  Justice

Justice                                  Justice                                  Justice

Justice


 

A v. B

Case/docket number: 
CA 447/58
Date Decided: 
Monday, May 25, 1959
Decision Type: 
Appellate
Abstract: 

The appellant claimed an order in the District Court against the  respondents,  who were husband and wife, declaring that he was the natural father of a child born to the wife and registered as that of the respondents. The claim was struck out in limine and the appellant appealed.

 

Held, dismissing the appeal,

 

Per Olshan P. The granting of a declaratory order is in the discretion  of  the court, and having regard  to  the nature of the claim, public interest and  morality,  the prejudice  to the status and interests of the child who was not even a party to the proceedings, and the fact that the appellant had not even told the court for what reason the order was required, the claim was rightly struck out.

 

Per Landau J. An action such as this, in which the court is asked to approve an act which offends against public morality with all the  harm  which  it  involves  for  the welfare of the child and for the adults concerned, and without it being shown that a proper purpose is being served, is a gross abuse of the process of the court and will not be heard.

 

Per Witkon J. An action for a declaratory judgment which does not serve a practical purpose involves a misuse of judicial authority which should not be entertained, and as the appellant had not disclosed any legitimate interest worthy  of  judicial  protection  that alone was sufficient to deny him access to the courts.

 

Per Berinson J. (Sussman J. concurring). The relief claimed is in the discretion of the court, and it is inconceivable that any court will grant the appellant's request which en­ dangers the status and future of a minor who is not a party to the action and cannot defend himself, when the appellant has not shown in his claim what benefit he will derive therefrom.

Voting Justices: 
Primary Author
majority opinion
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concurrence
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concurrence
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concurrence
Non-writer
majority opinion
Full text of the opinion: 

C.A. 447/58

 

A. v. B. AND ANOTHER

 

In the Supreme Court sitting as a Court of Civil Appeal

 

Olshan P., Sussman J., Landau J., Berinson J. and Witkon J.

 

Judgments and Orders-Declaratory Judgment-Discretion of Court­ No proper purpose shown-Possibility of prejudice to third parties.

 

The appellant claimed an order in the District Court against the  respondents,  who were husband and wife, declaring that he was the natural father of a child born to the wife and registered as that of the respondents. The claim was struck out in limine and the appellant appealed.

 

Held, dismissing the appeal,

 

Per Olshan P. The granting of a declaratory order is in the discretion  of  the court, and having regard  to  the nature of the claim, public interest and  morality,  the prejudice  to the status and interests of the child who was not even a party to the proceedings, and the fact that the appellant had not even told the court for what reason the order was required, the claim was rightly struck out.

 

Per Landau J. An action such as this, in which the court is asked to approve an act which offends against public morality with all the  harm  which  it  involves  for  the welfare of the child and for the adults concerned, and without it being shown that a proper purpose is being served, is a gross abuse of the process of the court and will not be heard.

 

Per Witkon J. An action for a declaratory judgment which does not serve a practical purpose involves a misuse of judicial authority which should not be entertained, and as the appellant had not disclosed any legitimate interest worthy  of  judicial  protection  that alone was sufficient to deny him access to the courts.

 

Per Berinson J. (Sussman J. concurring). The relief claimed is in the discretion of the court, and it is inconceivable that any court will grant the appellant's request which en­ dangers the status and future of a minor who is not a party to the action and cannot defend himself, when the appellant has not shown in his claim what benefit he will derive therefrom.

Israel cases referred to :

(1)          C.A. 238/55-Aharon Cohen and Bella Bousslik v. Attorney­ General (1954) 8 P.D. 4; S.J., Vol II, 239.

(2)          C.A. 291/56-Ya'akov Szczupak v. Shmuel Rapaport and 4 others

(1959) 13 P.D. 39.

(3)          C.A. 16/55-Marasha Ltd v. Albert Massri (1957)  11  P.D. 126. 350

(4)          File 226/5714-Husband A. v. Wife B. (1954) Rabbinical District Courts Judgments, Vol. 1, p. 145.

English cases referred to :

(5) Yoo/ v. Ewing (1904] 11. R. 434.

(6)          Holman and others v. Johnson, alias Newland (1775) 98 E.R. 1120.

Trichter for the appellant.

Levitsky for the respondents.

OLSHAN P. By virtue of secs. 38(b) and  40 of  the  Courts Law, 1957, it has been decided to forbid the publication of the names of the parties and of the child involved in these proceedings.

This is an appeal from a judgment given in the District Court of Tel Aviv-Jaffa on  December  4, 1958 by Lamm J. In terms of this judgment a claim filed by the appellant against the respondents for an order declaring that he, is the natural father of a child registered as that of respondents, was struck out.

It is not in dispute between the parties that the respondents, husband and wife, have been lawfully married for more than ten years and that  the child in question was born in December 1953.

The appellant, in his action, bases his claim  on  the allegation that he maintained sexual relations with the second respondent during the above-mentioned period, and also did so nine months before the bi th of the child.             .

The defence is based upon a complete denial of all the appellant's allegations, and includes the averment "that the action was commenced vexatiously and/or for defamatory and denigratory purposes only.

The  plaintiff  himself  requested  the  dismissal  of  a  similar action pre­ ,

viously filed· by him in this Honourable Court in  Civil  File  582/58. The earlier action was dismissed by a decision of the Registrar on 22.4.58."

The judgment, which is the subject of this appeal, states:

"I agree with Mr. Trichter (counsel for the appellant) that an action should not be struck out when there are prospects that the court will decide in favour of the plaintiff. But this is not so in the present case. The action is in fact direc­ ted towards obtaining a declaratory judgment which will de­ termine that the minor is illegitimate. I do not think that the courts of this country are entitled to grant relief to a person so as to injure the rights of a child, even if! were to accept the allegations in the claim as true, although a situation is con­ ceivable in which the interests ofa child may demand such a declaration, especially where an unmarried woman is concerned. I find, therefore, that the claim is misguided and I strike it out as not disclosing a cause of action."

Counsel for the appellant submits that the learned judge was not entitled to strike out the claim without affording the court an opportunity of considering the evidence which the plaintiff could adduce in order to obtain the declaration which he sought.

This would appear, at first sight, to be an argument of substance  and as a rule the courts are not anxious to exercise the power given to them by Rule 21 of the Civil Procedure Rules. In the result, however, I have reached the conclusion that the decision of the  learned  judge should not be disturbed. As he correctly states in his judgment, it is inconceivable that a court considering a claim such as this will exercise its discretion in favour of the plaintiff and agree to grant a declaratory judgment as sought, for the court must apply the utmost care when a minor is likely to be adversely affected.

But it is not this opinion which was expressed by the learned judge that served as the ground for his striking out the claim. From the context it is clear that the decisive reason for his ruling was that which appears in his concluding statement:

"I therefore find that the claim is misguided and I strike it out as not disclosing a cause of action."

This accords with the provisions of Rule 21.

Counsel for the appellant criticizes this conclusion ai:d it would appear, at first glance, that there is substance in this criticism.

The criterion for striking out a claim pursuant to Rule 21 is that the judge who is asked to strike out a claim under this Rule must assume  that the plaintiff will succeed in proving at  the trial all the facts alleged in his statement of claim. Upon this assumption, the judge is to ask himself the question  whether,  in law,  the facts  thus  proved  constitute a basis for the right asserted in the statement of claim. It is only in a case where the judge may properly say that, though the alleged facts are established by the evidence, the right asserted is not legally recognised, that he may exercise the power given him by Rule 21 and strike out the claim. If we are to apply the above criterion in the present case, the strictures of appellant's counsel would appear to be sound.

These are the facts upon which the appellant bases his claim:

(a)          The male and female defendants have been married for more than ten years.

(b)          From July 1952 the plaintiff had maintained intimate relations with the female defendant and cohabited with her.

(c)           At the end of February or early March 1953, i.e. about 9 months before the child was born, the plaintiff and the female defendant  spent six days in Shefayim and had sexual relations there.

(d)          The male defendant was impotent and/or otherwise  incapable of procreation.

- (e) Since July, 1952, the female defendant had cohabited  with no one  except the plaintiff.         ·

(f)           Relying on the facts set out in the statement of claim or some of them the petitioner believes and claims  that he is the natural father  of the child.

(g)          The defendants have never denied the plaintiff's allegations concerning his paternity of the child and the female defendant has not even really rejected his demand that the child be surrendered into his custody.

If it be assumed that the plaintiff will prove all these facts, he will thereby establish that he is the child's natural father. Accordingly appellant's  counsel  questions  the  ,action  of  the  learned   trial  judge in striking out the claim upon the ground that it does not  disclose  a cause of action.

Had this not been an action for a declaratory  judgment-i.e. for an equitable remedy the granting of which lies within the court's dis­ cretion-I would, perhaps, have found more substance in the appeal.

As I have said, the respondents deny most emphatically all and each of the allegations and assert that the claim was filed "vexatiously and/or for defamatory and denigratory purposes only". If there is  only  a scintilla of truth in the respondents' denials, the filing of the claim is singularly scandalous. One appreciates the concern of the respondents about the unsavoury details which the appellant was ready to put to the court together with all the "evidence" and "examinations" and the pernicious effect this will have upon the child. Their concern is under­ standable even if in point of truth they are quite confident that the appellant would ultimately fail. But in the light of the criterion for applying of  Rule  21 we have  to deal with  the appeal  without  regard  to the denials of the respondents.

In as far as granting a declaratory judgment lies within the court's

discretion-and a plaintiff may not demand this remedy as a vested right-then, even if the claim had not  been  struck  out  by  virtue  of  Rule 21 and  the  matter  had  come  to  trial,  the  court,  having  regard to the nature of the claim, would have had the power to dismiss it in limine before hearing the evidence, upon deciding that bearing in mind the nature of the claim, public interest  and  morality  and  the prejudice to the interests and status of the child (who is not even a party to the action) it is not prepared to use its discretion in favour of the plaintiff to grant him the relief he claims.

I have not found in English or  American  law  a single  aase  like the one before us, of a person who purports to  be the father  of a child  by alleging illicit sexual relations with a married woman and seeks a declaratory judgment which necessarily involves proclaiming that the child is illegitimate.

In as far as granting a declaratory judgment is discretionary, the court may consider the plaintiff's conduct even from a moral viewpoint and pose the question whether in equity the plaintiff deserves the relief which the judge is by law competent, but not under a duty, to grant.

It is not to be overlooked that in declining to grant a declaratory judgment at the outset of the trial, the court does not decide the merits of the dispute between the parties. If the case reached the stage of hearing and the court had announced at the commencement that no matter what the evidence will be it is not prepared to grant the relief prayed for, be­ cause in equity the plaintiff does not merit it-the court would not there­ by have decided the paternity question.

The discretionary nature of the relief in granting a declaratory judgment as explained above is to be gathered from the many precedents cited by the Deputy President (Cheshin J.) in his judgment in Cohen and Bousslik v. Attorney-General (1).

After mentioning all the authorities, the Deputy President aid:

 

"The court, in  considering  all  the  circumstances  of the case before it, particularly as we are dealing with relief which originated in the Courts of Equity, cannot, and should not, disregard the behaviour of an applicant and the back­ ground of his actions which, he submits, have created the rights in respect of which he seeks an authoritative declara­ tion from the court."

LikewiseSussmanJ. said (atpp. 36-37):

"Iam not prepared to dispute the principle enunciated          by Justice Cheshin, namely, that in considering whether or not to grant declaratory relief, the court may take into account the behaviour of the parties, as reflected in the actions which constitute the basis which serves for their application to the court."

Silberg J. was also of the same opinion. The two last-named justices only disagreed with the judgment of the Deputy President on the question whether from the point of view of the public interest the relief sought should be granted.

Does the plaintiff come to court with clean hands in the present case-as reflected in the statement of claim itself?

He says: "I maintained sexual relations with  a  married  woman. The child born five years ago and registered as the lawful child of the defendants is illegitimate. He is my son. Please make a declaratory judgment confirming my allegations and proclaim me as the child's father." He does not even trouble to tell  the court why  he requires such a declaration. The question of the appellant's conduct arises  not  just with regard to the female defendant but vis-a-vis the child who was not made a party to the proceedings at all, and particularly with regard to public morality.

To my mind there is no shadow of a doubt as to the reaction.of the court in connection with the exercise of its discretion in favour of a plaintiff such as this.

In Szczupak v. Rapaport (2), also a case of a declaratory judgment, no problem involving public morality arose. Nevertheless, the Coqrt of Appeal declined to deal with the lower court's conclusion regarding the very ght which the appellant had claimed and stated (at p. 40):

"As indicated, the appellant claimed a declaratory judgment. When a plaintiff makes such a claim, the burden  is upon him not merely to prove his right but also tQ convince the court that the circumstances demand this right to be determined by means of a declaratory judgment alone. The appellant here (as well as in the District Court) did not deny that it is possible for him to connect with the municipal sewage system without any difficulty and that the first, second and third respondents have agreed that it be done at their expense. That being so, the plaintiff has not succeeded in con­ vincing the court how he will be aggrieved or prejudiced if the right which he claims will not be established by means of a declaratory judgment. On the contrary, his insistence is likely to arouse a suspicion, or more correctly an impres­ sion-and we wish to emphasize that this has not been proved

-that here the question is one of scoring a triumph or of other motives which are not clear to us. Since on the one hand the appellant has not succeeded in  convincing  the court of the necessity for the relief sought, and since on the other hand his attitude tends to create the impression aforesaid, it follows  that  he  has  not  discharged  his  duty of convincing us that he should be granted a declaratory judgment. We have therefore decided to dismiss the appeal accordingly."

A fortiori when the petitioner comes with unclean hands, as above explained. Pomeroy in Equity Jurisprudence (5th  ed.) Vol.  II,  p. 91, sec. 397, speaking of the principle of clean hands in connection with equitable remedies says:

_    "It    says that  whenever  a  party, who as actor seeks to set the judicial machinery in motion and obtain some remedy, has violated conscience, or good faith, or other equitable principle, in his prior conduct, then the doors of  the court will be shut against him in limine; the court will refuse to interfere on his behalf, to  acknowledge  his right, or to award him any remedy."

At page 117, section 402, he says:

"The principle is thus applied in the  same  manner  when the illegality is  merely  a  ma/um  prohibitum,  being in contravention to  some  positive  statute,  and  when  it  is a ma/um in se, as being contrary to public policy or good morals."

And at page 133, section 402e:

"Even in this situation, however, it has been held that a person who marries another, knowing that the latter has a husband or wife living, is not an 'innocent or injured party', and the courts will refuse a formal decree of nullification."

 

This is very close to the case before us, for there is no doubt that the purported marriage is invalid, although the court will decline to assist him by granting relief which lies in its discretion.

And at page 143, section 404:

"A court of equity acts only when and as conscience commands; and, if the conduct of the plaintiff be offensive t9 the dictates of natural justice, then, whatever may be the rights he possesses, and whatever use he may make of them in a court of law, he will be held remediless in a court of equity. Misconduct which will bar relief in a court of equity need not necessarily  be of such nature as to be punishable as a crime or to constitute the basis of legal action. Under this maxim, any willful act in regard to the matter in litigation, which would be condemened and pronounced wrongful by honest and fairminded men, will be sufficient to make the hands of the applicant unclean."

Courts are particularly circumspect and exercise abundant caution when the relief claimed is likely to affect the status of a child, such as to att h to him the status of an illegitimate person.

In A v. B. (4) a case decided by  the Rabbinical  Court  of Tel Aviv, it was said (at p. 149):

"As for the plaintiff, it is clear that a person is not be­ lieved to say of the child of a woman married to another that the child is his, not the husband's, so long as the latter does not say that the child is not his."

In most instances, this problem arises when a  man  reputed  to be  the  father  or  to  whom  paternity  is  attributed,   endeavours  to  obtain a declaration that he is not the father. Even in such a case, when the plaintiff does not base his claim upon grounds which clash with public morality, his course will encounter many obstacles, if it involves a dec­ laration that the child is illegitimate.

Borchard on Declaratory Jqdgments (2nd ed.) p. 486, writes:

 

"On the other hand while allowing the child  to protect its status through declaratory actions some British Courts have refused to allow a putative father to bastardise  a child by securing a judicial declaration that a child  born  to his wife was not his -on the theory that he was adequately protected by the defence available to him should the child claim maintenance. Yet there seems a good reason why the plaintitrs legal interest in rejecting the imputation of father­ hood should have been judicially protected by declaration.

The Appellate Division in New-York in a recent case  pointed out a distinction between a  declaratory  proceeding to establish illegality of a child, in which the child is a nec­ essary party, and a proceeding in the Domestic Relations Court for an order of support,  which is not an adjudication  of illegality, if the husband is held  not  to  be the father of  the child."

 

An instructive illustration  of  the  matter  under  consideration  is the case of Yoo/ v. Ewing (5). There,  the plaintiff  filed a claim against one defendant who had formerly been his wife and from whom he was divorced and against a second defendant who was the young  female child of his former wife. In this action he asked for a judgment declaring that the child was not his daughter and also as against the first defendant an order prohibiting her from representing the child as his daughter.  They had been married in 1894 and following the marriage a son was born. The parties separated in March 1895 and thereafter no longer cohabited as husband and wife. The wife and the son lived in a town  near which the plaintiff lived. In April 1898  the  plaintiff  sailed  for India and returned in the year 1900. The female infant was born in December 1898 and the mother registered her as the daughter of the plaintiff. She did  not  inform  the  plaintiff  of  his  birth  at  all. In  1900 a divorce decree was granted on grounds of  her  adultery  and  custody of the infant son was given to the mother pursuant to an agreement between them, which recited that the son was the only child of their marriage. When the action was begun, the mother was married to  the man with whom she had committed adultery.

The judgment (at p. 811) reads:

. "It was  sought  to· show  not  alone  that  the  plaintiff was not the father of the child, but that another person was. Now the presumption oflegitimacy in the case of a child born during wedlock is not one juris et de jure.... But the pre­ sumption is of enormous strt:ngth, and will not be rebutted in an ordinary case, where husband and wife live together, by mere evidence, or even proof, that a person or persons other than the husband had improper relations with the wife. In such a case the law on the clearest grounds of public  policy and decency will not allow an enquiry as to who is the father. But it might be otherwise here, for this is not in this respect an ordinary case, as the husband and wife were not living to­ gether under the same roof."

Notwithstanding the admissions of the defendant which were proved, the action was dismissed and (at page 812) it was said, following a suggestion that the result might have been different, had this been a suit for divorce:

"But it is a suit mainly and really not against Mrs. Ewing but against the other defendant, the infant. The decree sought for against her is a decree in rem; that is a decree that would be final, and binding and conclusive."

The judgment later explains that despite the rule (similar to  our rule) concerning the power to make declaratory judgments, even without additional relief, a court will not  render  such  judgments  if  they  are not required in connection with positive rights at the time of the action. And no declaratory judgment will be given if it is only required by the plaintiff in connection with what appears to him as future or possible future rights.

"Nor must anything I have said to be  taken  to  mean that this court has not ample power to decide questions of legitimacy, when necessary, as for instance, when a claim is raised in which legitimacy is a material element in determin­ ing rights. If an action were brought against  the  plaintiff here for the maintenance of  the  defendant  Dorothy,  it would be open to him to contest it on this ground  that though born during  wedlock,  the  defendant  was  not  in fact his child" (at p. 816).

From the foregoing I have no doubt that had the appellant's action come to Lamm J. for trial (and not by way of a motion to strike out pursuant to Rule 21) he would have been entitled even at the outset, relying simply on the statement of claim, to inform the parties that he was not prepared to exercise his discretionary power in favour of the appellant in order to assist him by recognizing his paternity  by means  of granting a declaratory judgment, because he did not regard him meritorious as explained above.

 

The only question then that arises in the appeal before  us is merely a procedural question, namely, was the learned  judge  permitted  to adopt this attitude within the framework of Rule 21, upon  the ground that no cause of action  was  disclosed.  In  other  words,  does  the fact or circumstance showing that a plaintiff is, or is not, deserving of relief which lies within the discretion of the court constitute an element of the cause of action.

In an action of the kind now before us, this fact may form an element in the cause of action in a negative sense. Let me explain. In an ordinary action for a declaratory judgment the burden is upon the plaintiff, as stated in Szczupak v. Rapaport (2), "to convince  the court that the circumstances demand this  right  to  be  determined  by  means of a declaratory judgment alone."  Nevertheless,  if  the  plaintiff  does not expressly set out in the statement of claim the circumstances which entitle him to discretionary relief, it is almost certain that the action cannot be struck out on  the basis of  Rule 21. If  the statement  of claim is silent in the matter, the court will say that since prima facie there is nothing withi'.n the statement of claim itself to indicate that the plaintiff is not entitled to the  assistance  of  the court, such  omission  is  not  to be regarded as a defect in the statement of claim so as to permit the exercise of the power given by Rule 21. In such a case, if the defen ant seeks to strike out in reliance on Rule 21, the court will refuse the application, and will say that the question whether the plaintiff is en­ titled to discretionary relief has to be resolved  in  the course of the trial in the light of the circumstances which unfold themselves and on the evidence adduced by the parties with reference to the right itself claimed by the plaintiff.

Only in a very rare case, such as in the one before us, when the statement of claim itself discloses circumstances which show con­ clusively that the court must refrain from assisting the plaintiff by exercising its discretion in his favour-even on the assumption that the plaintiff can prove  the facts  set  out in  the statement  of  claim-in  such a case there is, in my opinion, a possibility of applying Rule 21, because what is sought by the plaintiff will not be granted him even if he should prove these facts.

Just as in the normaf situation the reason for striking out  the claim is that no purpose will be served by continuing with the proceedings, because even if the plaintiff proves the facts 'the right claimed will not thereby be proved, so here the reason is that there is no purpose in dealing with the action on its merits because even if the plaintiff proves the facts, his right to obtain a declaratory judgment will not thereby be established.

 

In ah action for sp.ecific performance, for example, if the defendant applies to strike out the  action  under  rule  21,  upon  the  contention that the plaintiff has not come with clean hands,  his application  will fail. The court will then say that since there is nothing in  the statement of claim to indicate the absence of "clean hands," but only the defence

alleges this, it is not a matter of. striking out the action and the issue in dispute, like all other issues, must be decided in the course of the trial and after the evidence is heard. But if the statement of claim itself discloses facts which point to the plaintiff's "unclean hands," the defendant can, in my opinion, move to strike out the action. The fact that here the "unclean hands" according to the terms of the claim arises with respect to public morality and not merely to the defendant does not alter the situation.

Moreover, in an instance such as the one before us, it seems to me that equity even compels adoption of the means provided in Rule 21, for not only will no purpose be served by_ leaving the action to go to trial in the usual manner, but definite harm will result therefrom.

If the claim is not struck out, the plaintiff can deliver interrogatories and compel the defendants to answer the questions in accordance with the provisions of the Civil Procedure Rules and this very thing will defeat the reason for which the court will refuse to use its discretion in favour of the plaintiff.

The plaintiff in the present case has already delivered such in­

terrogatories which contain questions such as the following:

To the male defendant:

Do you believe that the child is your natural child and that you are his natural father?

Is it true that you are impotent? Is it true that you are sterile?

Have you been cured of your sterility?

Is it true that Professor Zondek said that you are incurably sterile?

Is it true that various persons have informed you that your wife was having sexual relations with the plaintiff?

 

To the female defendant:

Is it true that from July 1952 onwards you have maintained sexual relations with the plaintiff?

Is it true that the plaintiff is the natural father of the child with whom you were pregnant in the month of Septem­ ber 1952?

Is it true that you have had no sexual relations with anyone except the plaintiff?

Is it true that the plaintiff is the natural  father  of  the  chila with whom you were pregnant in 1953?

Is it true that  the  plaintiff  is  the  natural  father  of  the child to whom you gave birth in December 1953?

Is it true that your husband is sterile?

Is it true that since July 1952, and up to the time that the child was born, you had no sexual relations with anyone  except the plaintiff?

Have you had sexual relations from July 1952 to 1953  with  any person or persons other than the plaintiff and, if so, please state their names and addresses?

It is also to be noted that in reality the plaintiff's adversary in con­ nection with the action  for a declaration  of  paternity  is the child  who is not a party at all in the proceedings, and it is he whom the plaintiff seeks to have declared illegitimate, and this about four years after his birth.

I am of the opinion that the appeal should  be dismissed, and  that the appellant should be ordered to pay the respondents the costs of the appeal (includi g counsel's fees) in the aggregate sum of IL 300.

LANDAU J.  I agree  that  the appeal should  be dismissed.  For  myself, I see no need to rest the decision in this matter on  the discretionary nature of the claim for a declaration in accordance with the rules of equity. It is not the form of the prayer which is decisive here but the sub­ stance of the matter which the appellant is brazen enough to bring before the court. If his allegations are true, he has committed an act which of­ fends against public morality, and now he asks the court to give him its ap­ proval therefor, with all the harm which it involves both for the welfare of the child and for the adults concerned. This is an abuse of the process of the court which can hardly be exceeded, because "no court will lend its aid to a person who bases his cause of action upon an immoral  or illegal act", in the words of Lord  Mansfield  in  Holman  v. Johnson (6), which  I cited in  Marasha  Ltd.  v.  Massri  (3).  It  sometimes  happens  that  in a civil action the court undertakes an examination of matters which are contrary to law or morals, when required  to decide  an action  brought for a proper purpose.  But this appellant  has not shown in his statement of claim that he has any legitimate interest in washing his dirty linen before the court.

I am therefore of the opinion that this action was justly struck  out and my reason is that it is vexatious within the meaning of Rule 21 (d), and therefore not proper to be dealt with by the court.

 

WITKON J. I am also of the opinion  that  there  was justification  for dismissing thw action in limine, and that  because, in my view,  an action for a declaratory judgment which does not serve a practical purpose involves a misuse of judicial authority which should not be entertained. The appellant has not disclosed any legitimate interest worthy of judicial protection, and this alone is sufficient to deny him access to the courts. The fact that we are here dealing  with  a  "delicate"  subject,  and  th t the appellant is not morally blameless tends to add weight to the above reason even though by itself it  is not, in my opinion, conclusive.  Had the appellant sought to prove his paternity of the minor for a legitimate purpose-e.g., in connection with a  matter  of  succession-the  court would certainly have been obliged to go into the details. But this is not the case in the present instance, and accordingly the learned judge was right in dismissing the action in limine.

BERINSON J. The plaintiff asks the court to declare that he is the father of the child to whom the female defendant gave birth at a time when she was the wife of another man. The plaintiff does not say why he requires this declaration. It is not to be supposed that a court of equity to whose discretion the granting of such a declaration is given will use its discretion in a case such as the present, in which, as it is possible to judge from the claim •itself, the declaration (if made) is likely seriously to prejudice third parties, without our knowing in what way it can be of advantage to the plaintiff. By "third parties" I do not include the female defendant who, according to the allegation of the plaintiff, maintained sexual relations with him whilst married to another. So far as she is concerned, there is nothing to prevent-either from a moral or any other viewpoint-the disclosure of the truth in court even if the truth is harmful and prejudices her and  her married  life. If  indeed  the allegation of the plaintiff is true, and at this stage we may not say that it is not true, the female defendant is not entitled to any special consideration by the court. Compared to her he is not affected with any more immorality or "unclean hands" than she is. It is therefore im­ possible, in my opinion, to say with certainty, or even to assume at the very outset, before hearing the substance of the case, that from the point of view of the possible harm to the woman the court would not have exercised its discretion in favour of the plaintiff, had he succeeded in proving all the allegations of fact which appear in his statement of claim.

But the matter does not only concern the woman but also and principally the child. What has this child been guilty of that his legal and social status should be allowed to be put into doubt without any  real need therefore? Is it conceivable that  any  court  will  decide  to  grant the plaintiff's  request  which endangers  the status and  future  of a minor who is no party to the actio-n and cannot defend himself, when the plaintiff has not shown in his claim what benefit he will derive therefrom? Had the plaintiff at least disclosed for what purpose he required the declaration and upon such disclosure  had there prima facie been  room  to weigh the possible harm to tJ;ie child against the possible benefit  to t}:le plaintiff, it might then have been proper to permit the action to proceed to judgment in the normal course. But the plaintiff did not do this. He has not disclosed his motives and reasons,  and  the claim  in itself is defective. It is like y to inflict grievous harm upon the child without our knowing that a comparable advantage will accrue to the plaintiff. Not everyone who wishes may come to court and obtain a declaratory judgment. The plaintiff has no right to a declaratory judg­ ment as a matter of course and on the basis of the claim such  as it is, even if it were fully proved, one cannot see that he will succeed in con­ vincing the court firstly that the relief claimed is essential and secondly that he is worthy of it.

I therefore agree that the appeal must be dismissed. SUSSMAN J. I concur in the judgment of Berinson J.

Appeal dismissed. Judgment given on May 25, 1959.

 

 

 

 

 

Full opinion: 

Abudi v. Minister of Religion

Case/docket number: 
HCJ 210/60
Date Decided: 
Monday, August 29, 1960
Decision Type: 
Original
Abstract: 

Upon the death of Chief Rabbi Herzog, an Election Committee of eight members was nominated under the Regulations to appoint and convene an Electoral Assembly. Half of the Committee was nominated by the Rabbinical Council in January 1960 and half by the Minister of Religions in June 1960. The first meeting of the Committee was convened by the Minister in July 1960, notwithstanding the claim of the Rabbinical Council that the invitation should be a joint one. In consequence, the four Council members refused to attend but subsequently one of them, Rabbi Abu Revia, relented. Thereupon the other three tendered their resignations to the Council which after considering the matter resolved to remove Rabbi Abu Revia from membership of the Committee and to replace him by another, calling upon  the other  three to withdraw  their  resignations. The latter  refused to do so but finally such refusal was accepted  as was also the refusal  of the replacement to act. In the meantime, the Committee continued to carry out its tasks with the four Ministerial members and Rabbi Abu Revia, after receiving an opinion from the Attorney­ General that neither the purported removal nor the resignations were of legal effect, since members were elected and only the Committee itself could accept resignations and effect removals, and even if they were appointed, the character of their duties required that the appointer became functus officio upon making the appointment,  without any further right of interference. The Council claimed that it was competent to remove Rabbi Abu Revia, that the other three could resign if they so desired and therefore that the Committee was not properly constituted and could not lawfully act by the remaining four members.

 

Held:     (1) That the removal of Rabbi Avu Revia was devoid of all legal effect because on appointment a member  does  not  become an agent  of the appointer, the 'umbilical cord' between  them  being cut (per Silberg J.) or because even though appointed to represent some interest, his appointment may not be revoked if he becomes a 'rebel' (per Witkon J.).'

 

(2)         (Cohn J. dissenting) The resignations took legal effect and there was no need for such resignations to be accepted by the Committee.

 

(3)         (Silberg J. dissenting) the Committee, whether consisting of five effective members (if the resignations were effective) or of eight could act by a majority of its nominal complement.

Voting Justices: 
Primary Author
majority opinion
Author
concurrence
Author
dissent
Full text of the opinion: 

,.

H.C. 210/60

 

RABBI SOLIMON H. ABUDI

V.

MINISTER OF RELIGIONS AND 6 OTHERS

 

H.C. 205/60

 

ABRAHAM ZEPHANIA

v.

MINISTER OF RELIGIONS AND 3 OTHERS

 

In the Supreme Court sitting as the High Court of Justice

 

Silberg J., Witkon J. and Cohn J.

 

Administrative law-Election Committee of Chief Rabbinate Council­ Character of membership-Whether members appointed or elected­ Ability to resign-Validity of removal and replacement of a member­ Competence of Committee acting without full complement-Majority required for decisions-Regulations prescribing the System of Elections or Appointment of the Rabbinical Council etc., 1936 ( as amended in 1954)­ Interpretation Ordinance.

 

Upon the death of Chief Rabbi Herzog, an Election Committee of eight members was nominated under the Regulations to appoint and convene an Electoral Assembly. Half of the Committee was nominated by the Rabbinical Council in January 1960 and half by the Minister of Religions in June 1960. The first meeting of the Committee was convened by the Minister in July 1960, notwithstanding the claim of the Rabbinical Council that the invitation should be a joint one. In consequence, the four Council members refused to attend but subsequently one of them, Rabbi Abu Revia, relented. Thereupon the other three tendered their resignations to the Council which after considering the matter resolved to remove Rabbi Abu Revia from membership of the Committee and to replace him by another, calling upon  the other  three to withdraw  their  resignations. The latter  refused to do so but finally such refusal was accepted  as was also the refusal  of the replacement to act. In the meantime, the Committee continued to carry out its tasks with the four Ministerial members and Rabbi Abu Revia, after receiving an opinion from the Attorney­ General that neither the purported removal nor the resignations were of legal effect, since members were elected and only the Committee itself could accept resignations and effect removals, and even if they were appointed, the character of their duties required that the appointer becamefunctus officio upon making the appointment,  without any further right of interference. The Council claimed that it was competent to remove Rabbi Abu Revia, that the other three could resign if they so desired and therefore that the Committee was not properly constituted and could not lawfully act by the remaining four members.

Held:                  (1) That the removal of Rabbi Avu Revia was devoid ofall legal effect

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because on appointment a member  does  not  become an agent  of the appointer, the 'umbilical cord' between  them  being cut (per Silberg J.) or because even though appointed to represent some interest, his appointment may not be revoked if he becomes a 'rebel' (per Witkon J.).'

  1. (Cohn J. dissenting) The resignations took legal effect and there was no need for such resignations to be accepted by the Com­ mittee.
  2. (Silberg J. dissenting) the Committee, whether consisting of five effective members (if the resignations were effective) or of eight could act by a majority of its nominal complement.

 

Palestine cases referred to:

 

  1. H.C. 43/46-Adel Ibrahim El Farrah  v. Chairman  and  Members of the Electoral Committee of Khan Younis (1946) 13 P.L.R. 336.

Israel cases referred to:

  1. H.C. 3/58; 9/58-Yona Berman and others v. Minister of the Interior; "Izhar" Israel Oil Industries Ltd. v. Minister of the Interior (1958) 12 P.D. 1493 (translated at p. 29)
  2. H.C. 19/56-Eliezer Brandvein v. Governor of the Central Prison, Ram/a, and others (1956) 10 P.D. 617.
  3. H.C. 221/56-Joseph Malahi v. Chairman of the Local Council, Rosh Ha-ayin (1957) 11 P.D. 925.

In H.C. 210/60

Spaer for the petitioner.

Hausner, Attorney-General, and Ter/o, Deputy State Attorney, for the first and second respondents.

The third, fourth, fifth and seventh respondents were not rep­ resented.

Salomon and Mizrahi for the sixth respondent.

In H.C. 205/60

Bechori for the petitioner.

Hausner and Ter/o for the first and second respondents. The third respondent was not represented.

Salomon for the fourth respondent.

 

SILBERG J. The petitions before s and the answers in opposition were conceived and born in the disturbed  atmosphere  surrounding, to everyone's sorrow, the elections to the Chief Rabbinate Counci.. This is attributable in no small measure to the existence of some very

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-- --- ----

 

 

 

old regulations  enacted  by  the  Mandatory  Power,  whose  usefulness is spent. These regulations were perhaps fit and appropriate for the Jewish Settlement in Palestine but are  no  longer  adapted  to  the political requirements of the State of Israel. It is to be regretted that the Israel legislature has  not as yet found  the  time and  occasion  radically to alter the election regulations and put them on  a  proper  footing  so that there is no longer any room for those coupling of names, specula- tions, forecasts and intrigues that are liable to settle around the person- alities of each of the members of the committee of eight. During the course of this judgment or at the end of it will appear the practical conclusions which we must or are liable to reach as a result of the anach­ ronistic provisions of these regulations.

  1. The curtain that was raised before us in this case revealed a scene replete with rules of law but poor in facts. Not all the "guiding spirits" were represented. Thus all that will hereafter be said in respect of the factual aspect of the matter will merely be that "relative truth" which emerges from the admissible evidence adduced in  court  by  one  or other party.
  2. The legal structure upon which the dispute between the two camps took shape is to be found in  the  regulations  which  bear  the lengthy title "Regulations prescribing the System of  Elections  or Appointment of the Rabbinical Council, Rabbinical Offices and Rabbis of Local Communities 1936" (hereafter called "the Elections Regulations") as amended on minor points in 1954 (hereafter "the  1954  amendment"). Let me here set out the provisions which touch the question before us.

"1. Not later than one month from the coming into force of these Regulations, and subsequently not later than three months prior to the expiry of the term of office of the Rab­ binical Council, the Rabbinical Council shall jointly with the General Council (Vaad Leumi) constitute an Electoral Com­ mittee of eight members for the conduct of the election of the Rabbinical Council.  One-half  of  the  number  of  members of the Electoral Committee shall be elected by the Rabbinical Council and one-half by the General Council (Vaad Leumi). The chairman and vice-chairman shall be elected from amongst the members of  the Committee;  neither shall  have a casting vote. Any layman (non-Rabbi) appointed  to serve on   the  Committee  shall  deliver  to   the  General   Council  ( Vaad Leumi) a declaration in writing confirming his positive attitude to the Jewish religion. The Committee shall pass•

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...

 

 

 
 

 

 

 

 

 

 

resolutions,by a majority of votes, and in case of an equal division of votes the Jewish Agency for Palestine shall appoint a member with a casting vote...

  1. The Electoral Committee shall address a request in writing to the Rabbinical Council to compile within one month a list of officiating Rabbis in Palestine.... The list shall be submitted to the Electoral Committee which shall nominate out of the Rabbis included therein the forty-two Rabbinical members of the Electoral Assembly for the election of the Rabbinical Council....If the list is not compiled within the prescribed period of one month, it may be drawn up by the Electoral Committee itself. The Electoral Com­ mittee shall provide each member with a certificate confirm­ ing his nomination as a member to the said Electoral As­ sembly.
  2. The Electoral Committee may call upon the General Council (Vaad Leumi) to submit within one month a list of the Local Communities and of the names of their respective delegates to the Electoral Assembly..

The General Council (Vaad Leumi) shall draw up a list of the Local Communities, shall prescribe the number  of their respective representatives, of whom the total number shall be twenty- ight, shall call upon the Local Communities concerned to nominate the prescribed number of candidates, and shall prescribe the number of Sephardic and Ashkenazic candidates respectively. The candidates of the Local Com­ munities shall be appointed by the committees of the Local Communities and each candidate shall deliver to the Com­ mittee of the Local Community concerned a declaration in writing affirming his positive attitude to the Jewish religion. Upon receipt of the names of the candidates of each Local Community, the General Council (Vaad Leumi) shall for­ ward the list to the Electoral Committee. In the event of the General Council (Vaad Leumi) failing to submit the list within the prescribed period of one month, the Electoral Committee itself may draw up the list. The Electoral Com­ mittee shall provide each member with a certificate confirm­ ing his election as a member of the Electoral Assembly for the election of the Supreme Rabbinical Council."

 

The 1954 amendment provides in Reg. 4:

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"4.      The election of the Rabbinical Council shall take place

 

.

•,

in accordance with the Elections Regulations with the follow­                                                                                                             \

 

ing  variations and adjustments:                                                                                                             '

  1.  

'

Every reference to "the General Council" (Vaad Leumi) in the Elections Regulations shall be deemed to be a reference to the Minister of Religions who shall act with the approval of the Government.

 

  1.  

'

Every reference to "the Committee of the Local Com­ munity" in the Elections Regulations shall be deemed to be a

 

reference  to   the   members  of   the  Council   of the  Local                                                                                                            J

 

'

Authority  who  shall  act  jointly  with  the  members of the                                                                                                            I Religious Council at a joint meeting to which there shall

 

be summoned members of the two bodies in equal numbers...

  1. The Jewish Agency for Palestine shall no longer have the right to appoint an additional member to the Electoral Committee.
  2. Every question or doubt which may arise in connection with the election of Rabbinical Council shall be determined by the Minister of Religions."
  1. To complete the picture and to render the incisive legal arguments of counsel more comprehensible, it is fitting to mention  two  further legal rules, one•a ministerial  regulation  and  the other a rule of case law.
  1. The Religious  Communities  (Organisation)  (Extension  of term of office of the Rabbinical Council of Israel) Regulations, 1960.

"I. Notwithstanding anything contained in Regulation 20 of the Regulations prescribing the System of Elections or Appointment of the Religious Council, Rabbinical Offices and Rabbis of Local Communities, published in the Official Gazette 1936, Supplement 2, No. 582, p. 198, the Rabbinical Council which was elected on 29 Shevat,, 5715 (21 February, 1955) shall continue in office until 26 Tammuz, 5720 (21 July, 1960) inclusive or until the date of the election of a Rabbinical Council which shall take place prior thereto, which ever_ is the earlier.

  1. These Regulations take effect on 23 Shevat, 5720 (21 February, 1960)."

 

As a result of a further extension (Official Gazette (Subordinate

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'

 

 

 

legislation) 1019 of 16.7.1960) the period of office of the Rabbinical Council was extended to 21 October, 1960.

  1. The rule laid down by this court in Berman v. Minister of the Interior (2) (hereafter called "Nahalath Yitzhak. rule").

In that case the Minister of the Interior, in accordance with sec. ;>(l) of the Municipal Corporations  Ordinance,  appointed  a  Committee of Inquiry to express its views on the question whether the district of Nahlath Yitzhak should be removed from the area of the city of Tel Aviv. The committee comprised seven persons, among them Messrs. Ariav and Tabachnik, who were respectively representatives of two important sections of the population, the non-labour element and the Histadrut. During the sittings of the committee Mr. Ariav died and the question arose whether as a result of his death the committee was competent to continue its task. In this regard, I said in my judgment (with which my respected colleague, Sussman J., entirely concurred) the following:

"6.   A second  argument  of a formal kind,  an argument

common to both counsel, was that even if the commission was  originally  competent,  it  became  disqualified  upon the

I

the death of Mr. Ariav. The respondent's answer to this was

that the provisions of sec. 37 of the Interpretation Ordinance prescribe that when an act requires to be done by a group of persons exceeding two, it can be done by a majority of them, and he relied upon the decision of the Supreme Court during the Mandate in El Farrah v. Electoral Committee of Khan Yunis (1).

 

This answer does not recommend itself to  me.  The majority of the members of  a  body  are called  a  'majority' when the members of the minority still  exist  and  not  when they have ceased to exist. Upon the death of Mr. Ariav, the remaining members became not a  majority  of  the Commis­ sion but an  incomplete,  truncated  commission,  and  a truncated commission cannot carry  out  the  function  with which the entire commission  has been  charged, particularly                                  , in the present instance in which a  special  role of representing the civic elements, was assigned to the deceased member.

Accordingly, no parallel and analogy can be drawn from the decision of the Supreme Court in the case cited."

This is the Nahlath Yitzhak rule  which  has  haunted  the Court at every stage of the present deliberations. The reason behind it, although

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not explained in that case, is that when the minority has ceased to exist, it is utterly impossible to compose one's doubt whether, if the minority had existed, it might not have succeeded in persuading the majority to accept its view, the question involved not having been canvassed in all its different aspects. This can be illustrated by taking the case of a judge­ ment given without first hearing the arguments of all parties. The rule assumes special significance when a seat is allotted to one or more meip.bers in a composite body on the ground that they possess a special "character", such as, for instance, sex, race, religion, party affiliation, intellectual capacity, ideology or outlook-a condition of  "parity" which also existed in the case of the committee before us.

  1. Now briefly and focally to relate the facts necessary for  the heart of the matter.
    1. On  19  February,  1960,  the  Rabbinical  Council   nominated as four members of the Electoral Committee, Rabbis A. Goldschmidt,

S.H. Abudi, Z. Markovitz and E. Abu Revia. These members will hereafter be called "the Council appointees." In using the term "nomi­ nated" I do not thereby hold as yet that this was an "appointment" and not an "election." I shall return and devote para. 7 of this judgment to this question.

  1. Precisely four months later, on 19 June, 1960, the Minister of Religions, with approval of the Government, nominated as the four remaining members of the committee, Rabbis Y.L. Maiman, A. Walden­ berg, Y. Kaafah and D. Shalush. These members are hereafter  called "the ministerial appointees."
  2. Trouble began at once with the convening  of  the first meeting of the eight members of the committee. The Rabbinical Council argued that the invitation had to be sent out jointly by the President of the Coun­ cil and the Minister of Religions, whilst the Minister argued to the contra­ ry that he,.and he alone, was authorised to convene the Committee, which he proceeded to do. Notices of the meeting, signed by the Minister alone, having been sent on 4 July,  1960,  the  Council  appointees,  including the said Rabbi Abu Revia, refused to attend the meeting of the Com­ mittee. Let it be said at once that on this point, so I think, the Minister and not the President of the Council was right, and that for two reasons.
  1. This trivial question of precedence  belongs without  any doubt to that class of questions which the  Minister  is empowered  to  decide by virtue of the said provisions of Reg. 4(4) of the 1954 amendment.
  2. In earlier elections, as also in the 1955 elections, the meeting

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was called by the Deputy Minister  of  Religions  and  nobody  worried or protested about it.

I fun not prepared to set aside the work of the Committee for this reason.

  1. Thereafter things came to a head.  The  dispute  between  the two "camps" grew sharper and more profound until  the  situation reached the impasse at which it remains today. We may note the following facts:

.(i) The first meeting took place on 6 July, 1960, five members attending, the four ministerial appointees and Rabbi Abu Revia. According to his contention, Rabbi Revia was convinced, after receiving a letter from the Minister (Exhibit 7), that the latter indeed was alone competent to summon the members of  the  Committee.  According  to the contention of the Qther.side, the matter sprang from the fact that in the meantime Rabbi Abu Revia had for private re sons decided to change camps. At that meeting Rabbi Maimon was chosen to .be -chairman of the Committee, to which at first all the Council appointees agreed, the fight between them and the ministerial appointees not yet having flared up.

 

  1. On 8 July, 1960, in view of the step taken by Rabbi Abu Revia, the three Council appointees, Rabbis Abudi, Goldschmidt and Mar­ kovitz, despatched a letter to the. Council (Exhibit 10) in which they asked to be released .from membership of the Electoral Committee. That letter states:-

"To our great distress and discomfiture, a serious matter has occurred which brings into question the basis of the Com:. mittee's work, at least in a public and moral sense. We have read in the newspapers that one of the Rabbinate's represent­ atives on the Committee, Rabbi Amtam Abu  Revia,  who was associated with.us in the said consultation [the reference is to the consultation in which all the Councµ appointees unanimously accepted the decision that the first meeting must take place either on the initiative of the members of the Com­ mittee themselves or on the invitation of the two bodies which had constituted the Committee] and signed the letter and was of one mind with us, and also expressed his-satisfaction at the end of our meeting with our unanimity of  views,  saying 'And Israel encamped there opposite the mountain, as one man with one mind'. Yet after all this he attended the said

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meeting without previously getting in touch with us and conducted himself as he did.

Even after the event Rabbi Abu Revia did not find it proper. to maintain any contact regarding the step he had taken, which it is not necessary to elaborate. It is superfluous to describe the seriousness of the matter  and  the  offence and consternation it has caused among the  Rabbinical  public and the grievous impression which this event with all its consequences and repercussions has made upon the community."

  1. On 10 July, 1960, the Rabbinical Council considered the request of the three rabbis and after a discussion adopted the following resolutions (Exhibit 11):-

" 1. In view of the conduct of Rabbi Abu Revia as reflected in this meeting, it was resolved to remove him from member­ ship of the Electoral Committee and to cancel his appoint­ ment.

  1. It was resolved to appoint Rabbi Mordechai Eliyahu of Jerusalem as a member of the Committee in the place of Rabbi Abu Revia. That Rabbi is accordingly appointed.
  2. In view of the above resolutions, the Chief Rabbinate Council appeals to its three representatives, Rabbis S.H. Abudi, Goldschmidt and Markovitz, that  they  withdraw their request to be released from membership of the Electoral Committee."
  1. On 14 July, 1960, the three above-mentioned rabbis addressed themselves  again  to  the  Rabbinical  Council  and  requested-   that  they should still be released.  Their  reason  for  this  was  that "the members of the Committee, representative of the Minister of Religions, do  not pay any regard to this resolution  of  the Rabbinical  Council,"  that is, the resolution about the removal of Rabbi Abu Revia and the appoint­ ment of Rabbi Eliyahu. With this request Rabbi Eliyahu associated himself. On the same day, the Council dealt with the plea of the four rabbis and decided t9 accept their resignations.
  2. In the meantime the chairman of the Committee,  Rabbi Maiman, continued with the activities of the Committee-further invitations were sent to the members thereof, the Rabbinical Council sought to obtain a list of officiating rabbis and so on-on receiving an

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opinion from the Attorney-General that neither the removal of Rabbi Abu Revia nor the resignation of the three other rabbis had any legal effect, until on 27 July, 1960 an order nisi (in File 205/60) issued from this court including an interim order to halt the committee's work. A similar order was made some few days later in another file (210/60).

To-day Mr. Zephania and Rabbi S.H. Abudi appear as litigants on one side and the Minister of Religions and the ministerial appointees and Rabbi Abu Revia on the other side-the Rabbinical Council was sum­ moned as respondent No. 7 in file 210/60 but has not appeared-and the  proceedings  revolve around  the following  two  basic questions:

  1. whether the Rabbinical Council was competent to remove Rabbi Abu Revia, and
  2. whether Rabbis Goldschmidt, Markovitz and S.H. Abudi could resign from office.

The petitioners argue that the two questions must be answered in the affirmative; the respondents on the contrary reply that  it is not so and that neither the removal nor the resignations are legally effective.

  1. Before we tum to elucidate these questions, we must attend to one argument that runs throughout the final submissions of Mr. Spaer. The argument is twofold, that ab initio the appointment of the four Council appointees was not a lawful one either from the point of view of the composition of the Council or from that of the date of appointment.

 

From the point of view of composition, the late  Chief  Rabbi Herzog passed away on 25 July, 1959 and the appointment of the mem­ bers of the Committee by the Council took place on 19 February, 1960. At that date the Rabbinical Council did not have its full complement, lacking one of its members; although some days later, as will be recalled, the council's term of office, as it then was, was extended (see below  para. 8). This extension, as expressly stated in Reg. 2 of the extending regulations, came into force only on 21 February, 1960. Thus, when the appointments were made, the Council was not complete and inevitably  in consequence of the Nahlath Yitzhak rule it was not competent  to  effect the appointment of the four Council appointees.

From the point of view of date, according to Reg. 1 of the Election Regulations the Rabbinical Council is obliged to participate in "the task of constituting" the Electoral Committee "not later than three months prior to the expiry of the term of office of the Rabbinical Coun­ cil"; on the day of appointment, 19 February, 1960, the Council's

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5 year term of office had not yet been extended and it was due to expire on 21 February, 1960. Thus, the appointment was made later than "three months before the end of the term"-it was made two days before-and obviously was null and void and there is no lawful appointment of the Council appoint es.

This double argument was put by Mr. Spaer with great restraint­ and he himself convincingly answered the first limb, as we shall see later. It merely served him as a desperate resort after all other hope had been lost, since if we accepted his argument, the very existence of the Supreme Rabbinical Council would be put in jeopardy and it was very doubtful whether his client or clients would thank him for this. There is no need to say that the Attorney-General did not rely on this argument since his main burden was to legitimate the Committee in its full composition of eight members and enable the elections to take place as soon as possible.

Nevertheless, I do not reject this argument because of the lack of importance  attached  to it  by the  parties.  I  reject  it  because it is  bad.

Mr. Spaer himself found the  conclusive  answer  to  the argument of incomplete composition in the provisions of Reg. 21 of the Elections Regulations, which provides:

"21, If a vacancy should occur in  the office of Chief  Rabbi or of member of the Rabbinical Council by reason of death or resignation of the holder of such office, the vacancy shall be filled by the candidate belonging to that community... .If there be no such candidate, and the deceased or resigned member be a Chief Rabbi, fresh elections shall be held in accordance with .these Regulations."

Now  ask  yourself,  if  a  "truncated"  Council   cannot   function, ow then will the elections tal<e place? The answer, perforce,  is  that Reg. 21 is a statutory provision which excludes the operation of the Nahlath Yitzhak rule with regard to the election of the Council and permits the latter to function forthis purpose even with seven members alone.

As to the point of time, my view is that one should not attach too much importance to the period of three months prescribed by Reg. 1.  The period was fixed for effective operation, so that the Council and the Vaad Leum( (now the Minister of Religions) could manage to implement the whole complicated procedure bound up with the Council elections. But if for any reason they could not  constitute  the  Committee  until after tµe commencement of the three months, they might do so within

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the three months period itself. Evidence for this may possibly  be found in the other "period" prescribed by these  Regulations.  I  refer  to  the one month given to the Rabbinical Council and the Committees of the Communities (now the Local Authorities Council) under Regs. 2 and 3. which provide that if the list is not complied by the Council or the com­ mittee of the community within one  month  "it  may  be drawn  up  by the Electoral Committee itself." "May be drawn up"  is the  term  used but not "must be drawn up". Hence the period prescribed is not cate­ gorically or absolutely imperative and the same applies to the period prescribed at the beginning of Reg. 1. I am not dismayed at the words "not later than" attached to the three months, since when the calculation 9ftime is not forward but backwards it is impossible not to use these three words there:

.It should be observed here that according to what emerges from the Minutes (Exhibit 1) the Council, when making the appointments, knew already about the extension that was to come. Clearly this knowledge itself does not serve to render the appointments valid but it expJains how the Council pictured to itself the carrying out of the elections.

  1. With this, I turn to the two main arguments: the validity of the removal of Rabbi Abu Revia and the resignations of the three Council appointees. The argument of the learned Attorney-General, as will be recalled, was that no legal effect attached to either the removal or the resignation and therefore the Electoral Committee ·persisted with its full complement of eight members.

On the first question, that of removal, the  Attorney-General relied upon the three following grounds:

  1. Both the Council appointees and the ministerial appointees were in truth ele<;ted and not appointed and there is no authority for removing an elected person.
  2. Even  if  they  were  appointed,  the  character  and  nature of the duties assigned to them  demanded  that  the  appointer,  whose task was complete with the appointment itself,  should  not  have  the right or capacity to interfere with the work of the Committee, and there can be no greater interference than the  possibility  itself  of  removing the  appointee.                       '
  • (c) There was no legal quorum when Rabbi Abu Revia was removed. The members of the Council according to the Law number eight; a majority is therefore five; the number who participated in the meeting dismissing the Rabbi (see Exhibit 1I) was four and not five.

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  1. The third and  last ground  does not recommend  itself to me at all. ' The late Chief Rabbi Herzog passed away on 25 July, 1959. Seven months after his death, on 23 February, 1960, the Minister of Religions made th Regulations extending retrospectively from 21 February, 1960 the term of office of the Council to 21 July, 1960. When these regulations were made the Council comprised seven and not eight members. Hence the authority to act granted to the Council was given to a seven-man Council alone, the quorum of which was obviously four and not five.
  2. Likewise I do not see any basis for the first ground. The learned Attorney-General drew his main support for this from the language adopted by the regulation-maker in Reg. I of the Elections Regulations, where it is provided that "one half of the number of members of the Electoral Committee shall be -elected by the Rabbinical Council and one half by the General Council (Vaad Leumi)". But whilst the learned Attorney-General is very precise indeed about the language of the legislator and invokes  its  materiality,  the  legislator  himself  who  is the "master mind" is not at all exact in his terms and uses in­ terchangeably two expressions. Thus In Reg. 1 itself, in the fourth sentence, he says "Any layman (non-Rabbi) appointed to serve on the Committee shall deliver to the...(Vaad Leumi) a declaration in writing confirming his positive attitude to the Jewish religion." The argument of the Attorney-General that this really means the special member appointed by the Agency in the event of an equal vote does not appeal to me at all. Why impair the position of this individual member more than that of any other member of the Committee who is not a rabbi? Is the Agency more suspect in matters of "religious qualification"

than the Local Councils?

We came across this very same phenomenon of saying one  thing and meaning another at another point in the Elections Regulations, according to the Hebrew version which is now binding by virtue of the Rabbinical  Council   (Miscellaneous   Provisions)   Law,   1955.   Thus in accordance with Reg. 3, in the language of the legislator, the non­ rabbinical representatives are nominated by .the Committees  of  the Local Communities (at present the Councils of the Local Authorities)

)ut after such appointment and their approval by the Electoral Com­ mittee, the representative receives a certificate that he was elected to the Assembly which elects the Rabbinical Council. Thus the one means the other, election is appointment, and accordingly nothing is to be deduced from the expression "shall be elected" in Reg. 1 and we may define the status of a member as if the phrase was everywhere "shall be nominated".

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10. More-much more-serious attention is to be paid to the dispute between the parties over the second ground of the Attorney-General, in which he underscores the absence of any power to remove Rabbi Abu Revia.

Yet I prefer on  this  point  the  Attorney-General's view to  that of Mr. Spaer. One can easily imagine how great would be the uproar and how debased the probity of the elections if every member of the Electoral Committee were the "personal representative" of the body which nominated him, foreswom to comply with the directions of his nominator. Mr. Spaer himself argued that the Minister of Religions had suggested to certain rabbis membership of the Electoral Committee on the condition that they undertook in writing to work for the election of a certain candidate for the office of Chief Rabbi and he regarded-and justly so-such conduct as highly tainted. I make no finding of fact at all with regard to this serious allegation. Rabbi S.H. Abudi gave evi_dence that he heard of this from Chief Rabbi Nissim who heard of it from Rabbi Kook. Rabbi Lufas gave evidence that the Minister of Religions told him that there was absolutely nothing in it. Neither the Chief Rabbi nor the Minister appeared before us and we have no possibility of deciding which is the true version. One thing, however, is clear and beyond all doubt, that tainted acts of this kind attributed by Rabbi

S.H. Abudi to the Minister of Religions, such acts and their "kith and kin" are likely to occur if a vital tie survives between appointer and appointee, and the first is permitted to give the second orders even after the appointment. This consideration alone compels the conclusion that upon appointment-as· the·Attorney-General expressed it-the "umbilical cord" should be cut  between  appointer  and  appointee, the latter becoming a being with its own life, who may and even must fulfil his task according to his personal conscience, his own inner voice and not that of others, without accepting any instructions whatsoever from the person of his appointer. This conclusion necessarily involves a denial of the power of removal, since otherwise this power would be a sword of Damocles enslaving the appointee to the will of the appointer.

Sec. 22 of the Interpretation Ordinance, however, provides that an authority empowered to appoint a person to an office may also remove him therefrom, but it adds immediately "unless a contrary intention appears." Here a contrary intention is implied by reason of the very nature of the office.

In my  opinion,  accordingly,  the  removal  of  Rabbi  Abu  Revia  is devoid of all legal effect  and  therefore  obviously  the  appointment of Rabbi Eliyahu also is nugatory.

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  1. As against this, I do not accept the contention of the Attorney­ General when he propounds the ineffectiveness of the three resignations, in spite of their being accepted by the Rabbinical Council. I have found no   warrant   for   this   extreme   proposition,   either   in   Jewish   law or in common law and Israel case law.
    1. Jewish law. The learned  Attorney-General  found support for his contention in the well known rule, the source of which is in the Tosefta of Baba Bathra, that a guardian who takes possession of the property of orphans or intermeddles in their affairs cannot resile (see Shulhan Arukh Hoshen Mishpat and Rama, Art. 290, para 23; Tur Hoshen Mishpat, Art. 290, para. 30 and Beth Joseph ad. loc.,

subpara.  18;  Magged  Mishneh   n   Rambam,   Laws  of  Inheritance, ch. 10, rule ·s, citing Rambam and Rashba) ut the matter bears no

comparison. There is no need to e;,cpand on the fact that a member of the Committee is not a "guardian" and committee matters not "orphan property." Even if the analogy is s retched to the extreme and these two. disparate things are mediated, Rabbis Goldschmidt, S.H. Abudi and Markovitz had most  certainly  not  yet  begun  to "intermeddle" in tlie Committee's affairs nor received any "property". Moreover this rule of guardianship is not an absolute rule but qualified. It allows for the resignation of the guardian for good reason, such as "if he leaves town" (see Rama, ibid. and Beth Joseph on Tur, ibid., citing Rashbatz). Thus the guardian himself can in certain circumstances free himself of his duties.

  1. Common law and Israel case law. I have examined the_ American and local sources cited to us by the Attorney-General but have not found any relevant precedent for the present matter.
  1. The reference to 19 A.L.R. (American) 37, 38, proves nothing, since it merely indicates the policy of cer:tain statutes. In thlS' country there is no law which prohibits or penalises the resignation of a public officer.
  2. The references to 19 A.L.R. 44-46, are evidence to the con­ trary. Two kinds of rights to resign a.re here stated (at the beginning of chapter 4) to exist, one absolute on the free volition of the officer, the other qualified, that is to say dependent upon the consent of the appointing authority. All the decisions mentioned deal exclusively with the question whether the officer may resign without the appointer's consent. The majority of the decisions cited permit  resignation  even  without  leave of the appointing authority. In the  case  before  us  the  resignation  of the rabbis was accepted by the Rabbinical Council.                     '

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  1. The judgment of Agranat J. In Brandvein v. Governor of the Central Prison, Ram/a (3). The Attorney-General can derive no benefit for his argument from this judgment. It is there said (at pp. 626, 627):-

"There remains, however, another consideration which supports the construction we have decided to give to sec. 16 [of the Judges' Law, 1953]. This  consideration  is  based upon the principle inherent in the common law that a person appointed or elected to serve in a public office assumes a public duty from which he cannot divest himself unless express provision exists in the enabling Law empowering him to do so, or. alternatively his voluntary resignation is accepted by those appointed over him...

This view, that a person appointed or elected to public office assumes a heavy ·public duty from which he cannot divest himself by a unilateral expression of his desire to do so etc."

A pedantic person might lay great significance upon the words "those appointed over him." The Rabbinical Council, he would argue, was not appointed over the Committee and therefore this dictum does not apply here.

I do not think that Agranat J. intended this in his judgment. The idea is that resignation may not be unilateral. It must receive the seal of those concerned with filling the. office. In this sense, the Council also is "appointed over the committee." Thus if the office falls vacant, it can and must fill it anew in accordance with sec. 20 of the Interpretation Ordinance.* I do not agree with the argument of the Attorney-General that upon the appointment of the members of the Committee the Council was functus officio and could no longer act in accordance with sec.20 as aforesaid. If it were otherwise, what should the Rabbinical Council do if one of the members it appointed dies?

  1.  
 
 



The judgment of Berinson J. in Malahi v. Chairman of the Local Council, Rosh Ha-ayin (4). This judgment is most certainly in complete contradiction to the argument advanced by the Attomey­ General. After sketching the position under English common law tegarding the right of resignation and the more lenient attitude under American case law, Berinson J. there went on to say (at p. 932):-

 

  • This section provides that a duty imposed by statute must be performed as occasion arises.

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"It appears to me that the background of public life in this country and Israel public opinion towards abandoning public office is far nearer to that of the United States than of England. We have no serious fear that, Heaven forfend, there will be a lack of persons ready to assume public office. Nor does it enter the mind of anyone that filling a public post involves any proprietory or possessory right for the person in office or that the office is some kind of burden imposed upon him by the public, which he must continue to bear so long as he is not given permission to yield it up by the appropriate authority. Such principles are completely opposed to the views which prevail among us of the character of public service and the freedom of action of the individual in his attitude towards public office, to enter upon it, to persevere in it or to give it up. Accordingly, I am of the opinion that whilst there in no

provision in the enabling Law which denies or qualifies the right of the holder of public office to resign, his right to give it up voluntarily at any time continues to exist and it is enough for

him to _express his d7sire clear!)! and unequivocally."

The learned Attorney-General sought to disting sh between permanent public office and an isolated public task such as membership of the Electoral Committee. Resignation from the first is possible with or without approval of the appointing authority, from the second, never. There is no precedent for this distinction. It is also likely to bring in its wake the injurious result that the blind, the lame and the sick will thereby be compelled to continue to serve in office whatever the sorry consequences thereof.

I have not closed  my eyes to the fact  that  in  the case  before  us,  if the resignation of the three rabbis is set aside, they still need do nothing, since their "work" will be done by others, the five members of the Com­ mittee, who constitute a majority by virtue of  the provisions  of sec. 37 of the Interpretation Ordinance.* Yet I think it would be an incorrect  and even a very dangerous legal principle if we held that a person ap­ pointed for an isolated public task could not rid himself of it even with the approval of the appointers.

Accordingly,   my  opinion  is  that  the  resignation  of  Rabbis S.H.

Abudi,  Goldschmidt  and  Markovitz,  which was accepted  by the Rab-

 

 
 

 

 

  • "Any matter, the doing of which is placed upon a number of people more than two, may, unless a contrary intention appears, be validly done by a majority of them."

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binical Council, took legal· effect and they are no longer members of  the Committee of eight.

12. What are the consequences? The situation is certainly  neither easy nor very pleasant, but such is the law and  we are not at  liberty to depart from it or to "sweeten the pill" by a  wrong construction. The committee to-day consists of five members alone, that is to say,  it is a truncated committee and as a result of the Nahlath Yitzhak rule it cannot perform its functions until the Chief Rabbinate fills the vacan­ cies by the appointment of three members. Theoretically, the Council can halt the activity of the Committee by refraining from doing anything, by not "accrediting" the three missing members. That would be "sabotage" and I hope that the Rabbinical  Council  will not follow this unseemly course. If it so conducts itself, somebody is likely to be found who will volunteer to apply to this court and seek an order against the Council for the appointment of members, and there will be further cause for indignity and indignation. I think that although the order made by this court rp.ay not actually exert pressure either upon one or upon the other "camp", a way will be found  to  right  the situation and respect for the humiliated rabbinate restored.

 

In my opinion, accordingly,  the  order  nisi  in  both  files  should be made absolute in the following terms:

 

The committee must cease from doing any  act  whatsoever until the Rabbinical Council appoints the three members lacking for the lawful number of the Committee.

 

WITKON J. Two questions  present  themselves  to  us,  one,  whether the removal of Rabbi Abu Revia from office as a member of the Electoral Committee is sound in law, and two, what are the effects and implications of the resignation of the other members of the Committee,  chosen  by the Rabbinical  Council.  In  answering  these  questions  we are obliged, I think, to place in the forefront the special character of the Committee which must be constituted by the Rabbinical Council together with the Minister of Religions in accordance  with  the  Elections  Regulations. We must remember who  are  the  constituents  and  who  the  members of this Committee, what  is the structure  of  the  Committee  and  what its functions. There is not much sense in speaking of "removal" and "resignation" as such in the void. The rule associated with one type of committee or function  does not necessarily  attach  to every other  type. It is very possible that it also does not attach  to  the  type  with  which we are concerned.

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The principal and central argument of Mr. Spaer for the petitioner was that the Electoral Committee is comprised of "representatives" of two bodies, each of which needs to elect or appoint its half. This argument was the main pillar of all his careful submissions. He regarded the four members elected to the Committee by the Religious Council as members whose task it is to represent that institution. It should, however, be noted for the sake of accuracy that the petitioner also,. Rabbi Abudi, did not himself contend that such a representative is some kind of agent who must obey the instructions of  his principal. The rabbi emphasized  that he had to act according to his conscience. But his argument was that since the regulations assign the task of constitution to these two different bodies,  the  persons  they  choose  also  reflect  the  particular   attitude of the body- which elected them. One found to be lacking expects to be removed. The main thing is that when a place falls vacant, whether because of death, removal, resignation or any other reason, the Com­ mittee becomes defective in composition and is deprived of the authority to act.

 

It appears to me that this argument loses sight of the true character of the Electoral Committee. As will be  recalled,  the  Regulations  in their original form of 1936 gave the task of constitution to the Rabbinical Council and the Vaad Leumi jointly, and in the event of deadlock between' the members chosen by these two bodies the right to decide rested in a member appointed by the Jewish  Agency.  To  my  mind, even in this dualism of the two bodies, the Council and the Vaad Leumi, it is difficult to see any recognition  of the existence of special interests. It is true that the Rabbinical Council is a rabbinical-religious institution, whilst the Vaad Leumi is a "secular" institution which represents the people in all its streams and strata. But this difference between the religious and secular approach is certainly not relevant to the differences of opinion which have now revealed themselves between the  Council and the Min1ster. However, if no hint is to be found in the old regulations for the representation of bodies possessing different attitudes, how much more so with the regulations of 1954. The latter-the handiwork of the then Minister of Religions-became currently necessary upon the establishment of the State. The Minister of Religions now took the place of the Vaad Leumi concomitantly with the abolition of  the  deciding vote which the Jewish Agency had previously possessed. Two things followed upon this amendment. The first, whilst  during  the  Mandate the law in the religious field had honoured the principle of the autonomy of the institutions of the Jewish Settlement in the country,  now  under the State the order of things was put upon a national basis. Thus the

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matter of the Rabbinate is one for the public as a whole. Secondly, the maker of the new regulations apparently had no fear of divisions and differences of opinion among those elected by the Council and those elected by the Minister along "party" lines and thus no longer saw need to provide means for resolving any stalemate among the members of the Committee. If he still left 'the authority to choose one-half of the members of the Committee in the hands of the Rabbinical  Council,  he certainly did so out of the consideration that this institution was more likely to choose prominent people who could be trusted to carry out the task. By the same token also, such persons would be of the same mind as the Council. But I do not see, nor have I heard from counsel. for the petitioner, what special material standpoint there could be for the Council to be represented by its members on the·Electoral Committee as against the second body, the Minister of Religions. I do not think that the latter who made the 1954 regulations·thought at the time to further any particular attitude-if not  to  say  "interest"-that  the Council members, as distinguished from his own, would be intended to represent. In this regard, the position of the Council is unlike that of political parties, professional organisations, communities and the like, when they send representatives to inquiry committees and similar bodies, although it behoves even such "representatives" to display independence of mind and not merely to march to orders. I therefore think that the whole basic approach to be inferred from Mr. Spaer's argument was mistaken from the outset.

 

Against this background, one must consider the validity of the removal. It is clear to me that neither the Rabbinical Council nor the Minister of Religions may remove  a  member  chosen  by  them  when he loses grace or ceases to be a person of confidence and trust. I see no need here to deal with all the occasions which may justify removal. In this judgment I limit myself to the circumstances which served as the occasion for the removal of Rabbi  Abu  Revia,  as these were disclosed to us. Indeed I' think that these circumstances were disclosed sufficiently for their purpose even without the addition of the explanations which could have been advanced  by the Rabbinical  Council itself. The matter is clear to all that this member's attendance at the Committee's meeting summoned by the Minister of Religions alone, despite his previous agreement not to attend  nor  to  engage-in  further  consultations  with the other members, meant in the eyes of the Council and its other nominees a deviation and a breach of the discipline which in their view he owed. They declared him a "rebel". This is certainly not a ground for his removal, and that a fortiori. For if even a number of an elected body,

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who serves as representative of the party interest of his electors, as for instance a party member in the Knesset or on a local council or any other body, is not under the domination of his electors and they may not control how he discharges his mandate, how much more so a member of the kind here under consideration. There is certainly nothing wrong for such a member to receive guidance from the body which chose him and to act in its spirit. But from this it is not to be concluded that when a member throws off the yoke of discipline, those who sent him may revoke his mission. Once chosen, he sits in his own right and ceases to be subject to the governance of those who chose him. Why does this rule

_apply doubly to a member of the Electoral Committee? Because from the very structure and function of the Committee it follows that a11 its activity is confined to one end and must be carried out within a fixed time. Not only that the election itselfis tied to a limited period, but the function is an isolated one and does not continue indefinitely. We would reach a state of chaos if the electing body were at liberty to go back on its choice and elect another at any time, so long as the Committee had not com­ pleted its work. In accordance with what sec. 22 of the Interpretation Ordinance states, a contrary intention is here implied  from  the  very task and the mode of election involved.

 

I now pass to the question of the resignations and I must confess that this question worried me not a little. We have heard much from counsel of both parties about the right or the absence of the right of a person to resign from an office to which he has been elected or appointed. At the end of it all, it seems to me that no such person is to be denied the right to resign, at least when his resignation is acceptable to the body from which he accepted office. Even on the strictest view, a person may resign with the consent of his principal. I have not overlooked the argument of the respondents that upon  the election  of its members the Council completed its work and thenceforth the Council had no contact or connection with them. On the other hand and without laying down any firm rule oflaw, since differences are revealed in the observa­ tions of Agranat J. in the Brandvein case (3) and those of Berinson J. in the Malahi case (4), I see the difficulty in accepting the view of the Attorney-General that a person elected fo be a member of the Electoral Committee cannot resign whatever the circumstances. It seems to me that the question is quite another one-and it is the  only  question which interests us here: what are the implications of this "resignation" and what is its effect regarding the continuance of the work of the Electoral Committee. The Attorney-General and Mr. Salomon relied upon sec. 37 of the Interpretation Ordinance and contended that the

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Committee may continue to function, whilst Mr. Spaer seized upon what was said in the matter of Nahlath Yitzhak in the Berman case (2) and contended that upon the resignation of three of its members the Com­ mittee was nothing but a "truncated" Committee deprived of the legal basis for fulfilling its task.

In my opinion, no assistance is to be had from the Nahlath Yitzhak case. I agree for the purposes of the present case that a committee constituted, wholly or partly, of representatives of different interests would be disqualified from functioning if the place of one such represen­ tative were filled for extraneous reasons, and particularly if as against him an adherent of the opposing interest continued to be a member,  but in two respects what happened in the Nahlath Yitzhak matter  differs from the present case. The first difference is that there, in the Nahlath Yitzhak matter, one of the committee members appointed to represent a special interest, had died, whilst in our case the Committee was "trun­ cated" with the  express  intention  of  obstructing  its  further  activity, for thus and not otherwise must we construe the resignations. I do not think at all that what was said in the Nahlath Yitzhak matter, in con­ sequence of the death of one of the committee members, would  have been said, if that member or the body whose affairs he needed to represent had indicated their refusal to participate in the committee's deliberations. The second and main difference is that the Electoral Committee is not comprised of representatives of different interests.  I  have  already spoken about this above and there is no need to expand on it.

If the committee is not to be disqualified in reliance upon the Nahlath Yitzhak case, is  its  work  valid  in  accordance  with  the  rule in sec. 37 of the Interpretation Ordinance? This rule empowers the majority to do everything which must be done by a number of persons more than two. Here Mr. Spaer argues that this rule does not  apply except where every member of the body is in being, but if the body is deficient because of the death or resignation ofa member, there is nothing in the rule to regularise any  act done  by  the  remaining  members  of the body, who constitute a majority. He did not draw our  attention  to any precedent one way or the other,  which could  uphold  his argument or contradict it. From the point of view of its consequences, I hesitate greatly in accepting the argument  in  a  case  such  as  the  one  before us, since there is nothing in law to enable  a  single  member  to vitiate the work of a committee and silence it completely by sending in his resignation. This would involve the total domination by the minority of the majority. Again, I see the difficulties likely to be created in the event of a member's  resignation or the divestment of his qualificatio_n. If such

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a member was assigned to represent a vital interest, it is possible that by his  absence  the  committee  would  be  "truncated"  and  then  the  rule of the Nahlath Yitzhak matter would apply. But if he did not represent any special outlook and attitude and  was  indistinguishable  from  the rest of his colleagues and his place fell vacant because of death or resigna­ tion, is it the intention of sec. 37 that the committee should carry on without him? I have considered the matter and in the end have reached the conclusion that indeed so it follows from the plain meaning of the terms of this provision. But more than this, in the present case we are dealing with the resignation of three members who took this step  with the express intent that they should no longer be  associated  with  the work of the Committee. They washed their hands of the wholt; business. Is there any difference between such "resignation" and ceasing to have any connection with the work  of  tlie Committee?  In my  view there is no  real difference. In the face of a  resignation,  whose  whole purpose   is to.set at nought the intention of the rule-maker and render it nugatory, one cannot say that a c9ntrary intention is implied in  these  regulations. In the absence of any provision to the contrary for the case of resignation of this kind, it is not to be assumed that the rule-maker meant them to be thwarted.

It follows therefore in my opinion that the remaining  members  of the Committee, who are the majority, are competent to continue with their work. Like my respected colleagues, I also am not happy with this conclusion that leaves to the five what the law entrusted to eight. But I annot see any escape from this except in one of two ways. It is possible for the Council now to re-elect three members to make up the number. lfit does so, I also think that the time factor will not stand in the way. If the Council does not take this course, the Government could consider whether thi is not a case for putting into effect the provisions of sec. 23 of the Interpretation Ordinance, under which it has the authority to direct that others shall replace those who have resigned.

 

I advise to discharge the orders nisi.

 

COHN J. I am of the same opinion as my respected colleagues that the removal of Rabbi Abu Revia from membership of the Electoral Com­ mittee is of no effect. To the reasons given therefor by Silberg J., I wish to add that an express rule' exists in Common law under which a body that participates in the constitution of another body (as the Rabbinical Council here participated in forming the Electoral Committee) may not deny a member of the constituted body his membership therein even

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if it has originally appointed> him for that purpose (see Halsbury (Hail­ sham edn.), Vol. 8, p. 32, para. 46). As for·sec. 22 of the Interpretation Ordinance, upon which Mr. Spaer placed reliance, and according to which the authority empowered to appoint a person is also empowered to remove him from office, this provision is conditional upon there being no indication to the contrary in the enactment which grants the power of appointment. The intention  implied in  the Elections  Regulations is that upon the appointment ofthememb'ers of the Electoral Committee, the link ceases, that umbilical cord so to speak, mentioned by my colleague Silberg J. in his judgment, is cut between the appointer and the appointed, in such a manner that assures the appointed person not only the freedom of voting and selection but also freedom from the threat of compulsory unseating; for without freedom from such threat, there can be no freedom at all of thought, voting and choice.

. I also concur, with respect, in the view of my colleague, Silberg J., that neither the laws of guardianship and charity overseers in Jewish law nor the Common law rules relating to Crown service can tell us anything in the least about the legal effect of the "resignation" of the petitioner and his colleagues from membership in tl:J.e Electoral Com­ mittee. This alone is to be said-even according to my colleagues-that once the link is broken etween the Rabbinical Council, the appointer, and the petitioner and his friends, the appointed, it s,eems to me that the Rabbinical Council is no longer competent to accept their resignation­ in as far as it may be necessary for someone to accept the resignations before it can become effective; it is evident that the resignations need to be accepted by the body from which the restgnations are made and not by the body which appointed them.

For me, however, the question of the effect of the resignation  as such does not call for decision in this case and therefore I will  not express any opinion either upon the right for a person to resign from a public duty office which he voluntarily and after thought took upon him­ self, or upon the nature, compass and application of the law decided in the Berman case, (2) according to which a truncated committee is not a committee. In my view, the Electoral Committee here was lawfully appointed and lawfully exists and as long as it carries on its work by a majority of its members it acts lawfully (sec. 37 of the Interpretation Ordinance).

 

It is quite true that when a person is appointed for any task, and that also at his will or wish, he is not compelled to carry it out-except in those cases in which this court will intervene and issue a mandatory

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order. In the absence of such a court order,  the person  on whom  the task falls may at his wish faithfully discharge it and at his desire be in­ dolent, negligent or remiss. Negligence and remissness may sometimes result from psychological motives, whether controllable or not; some­ times they may result from cool calculation or an emotional reaction to a slight upon one's pride or in obedience to the demand of one's conscience. Such negligence and remissness manifest themselves in many ways; sometimes the person vociferously proclaims his conscience and its effects upon him; sometimes he endeavours to justify his feebleness; sometimes he passes  his conduct  over in  silence as if  everything  was as it should be; sometimes he conceals his default by feverish  activity. As to the lack of effort itself in fulfilling the task, it is immaterial what the motives are and what form it takes. And so long as the court is not asked to enquire into his conduct and the.reasons themselves, I would not be prepared to judge the measure of justification or necessity or the extent of the fault and lack of responsibility in such conduct or such reasons.

 

So also is it in the case before us. For reasons and motives of their own the petitioner and his fellows refuse to carry out the task put upon them with their consent to act as members of the Electoral Committee and properly participate in its work. I shall express no opinion as to the nature of these reasons and motives and I shall assume in favour of the petitioner and his colleagues that these are well considered and powerful and that indeed it is conscience which prevent them from filling the office which they undertook. Since there is no petition before the court to order them to do so, nothing remains for us but to leave them in the state of passivity which they have chosen.

 

Unless a person is given the power to choose for himself whether to act or not to act, he has no authority to force his decision upon another. It is patently clear that in order to attain any political or public purpose, the act or omission of an individual is in most cases insufficient. Success is conditional upon carrying others along with him. If the nonfeasance, directly or indirectly, results because the person does not desire to or cannot acquiesce in the outcome originally anticipated from the act had it been performed not necessarily by him alone but by others with him, it is natural that he should try with all his power to render it undone by others as well, since otherwise he will not achieve his aim. Such com­ pulsion of others is always wrong even if exercised by means apparently quite lawful and legitimate. At least there is no law or judge in this country to set the seal upon any use of methods which prima facie seem

134

 

-

 

 

 

 

lawful and legitimate but the purpose of which is to force an action upon a public body or to impede it in the fulfilment of its function.   ·

These words are uttered with regard to the term "resignation" which the petitioner and his co-members adopted in announcing their decision to divest themselves of the burden of the Electoral Committee. If such resignation means that each of them has rid himself of the trouble of attending the meetings of the Committee or of raising his hand in voting, or of any interest in or attention to or preoccupation with the deliberations of the Committee and its activities, so be it. It is his right and no one can deny it to him. But if such resignation means amputating the Committee and killing it altogether and forcing the compulsory removal of the remaining members1 this court must come to the rescue so that none of the conspirators succeed in rendering the law impossible of proper implementation. Such a conspiracy may indeed succeed if a half or a majority of the members of the Committee who desire its demise so contrive. But it follows that at least a majority of the members of the Committee are needed to carry out the plan and in such a case the active minority will be frustrated by the obstructive majority. As long, however, as the activists are the majority and the others the minority, it is not to be given to the latter to thwart the majority.

I regard the announcement of the petitioner and his fellows to the Rabbinical Council (Exhibit 10), which he repeated in evidence before us, as a notice by agents to their principal that in consequence of the conduct of Rabbi Abu Revia  they were not prepared  to sit  with  him  and therefore could not  participate  in  the  work  of  the  Committee. This communication the Rabbinical Council found acceptable and the Council-I  fear,  without   any   power-released   them   from   the   duty of taking part in  the Committee's  work. In  this  regard, in my opinion,  it is immaterial what language was employed in  the  announcement which was made. The legal position does not differ whether you  call their ceasing to act "resignation" or "strike" or  "self  proscription"  or any other term expressive of taking a vow of self  denial.  Even  after such announcement and without the active participation of the petitioner and his friends the Electoral Committee continues to exist in its original composition.

Accordingly there is in my opinion no occasion for appointing others as members of the Committee in place of the petitioner and his friends. Even if there were occasion or need for this, it is clear  to  me  that the Government could not appoint  them  by  virtue  of  sec.  23 of the Interpretation Ordinance, as Mr. Salomon tried to argue before us.

135

 

 

 
 

 

 

 

 

 

 

The provisions of that section apply only when a statutory duty or power is imposed upon the person who is prevented from carrying out his task or whose office falls vacant, but not when the power or duty is that of a committee or body of which that person is only one member.

In view of the conclusion I have reached, which falls within the category of a decision on the facts, there is no need also to decide the question of law whether sec. 37 of the Interpretation Ordinance deals only with a majority of the members of a body when all of them exist, even though they do not  in fact join in doing  the act concerned,  or  whether it deals with a majority of members in any event, either when they all exist or when some  are lacking. This distinction  is not  of importance for the matter before us, since even if sec. 37 were construed restrictively, its provisions would apply here where all the members of the Committee are alive and in office. But because the distinction has in practice occupied the great codifiers, and out of respect for tlie parties who appear before us and counsel who have cited Jewish law as well, I have given much

_thought to the relevant Jewish law and shall briefly consider it.

There is no difference of opinion among the jurists that in judicial acts the majority decision of judges or arbitrators is not followed unless all were present at the hearing. Even if one out of ten or one out of a hundred is removed, the structure will collapse.-

"since the majority prevails only when it has reached its decision after all have considered the question and not if some are ab.sent. For it may be said that had the latter been present, they might have shown some reason for reversing the view agreed upon by the majority and the majority might have adopted it....This is obvious for judicial purposes and it ap­ plies likewise to arbitrations. There is never a majority unless it emerges from a body as a totality after due deliberation. But a mere majority out of a whole which considers or assesses or implements a matter by itself and not in consultation with the total body or not in its presence can decide nothing."

(Responsa of Ritba, 85; so also Responsa of Rashba cited in Tur Hoshen Mishpat, 9, 13.)

The learned Attorney-General argued that the functions of the Electoral Committee are quasi-judicial and thereby sought to give some reason why its members may not resign. I do 'not accept this argument since were I to regard our Committee as quasi-judicial, even I also would hold that there is no majority unless all are present and participate

136

 

in the hearings. For the distinctive feature of a judicial or quasi-judicial act is to judge between contending parties and not as the Attorney­ General tried to argue the independent exercise of discretion. The latter attends judicial and administrative activities but the exercise of dis­ cretion required for electoral purposes does not exceed in extent, in­ dependence and nature that required for an administrative act upon which the rights of  others depend.                                             ·

There is an additional reason for this rule which has been laid down for judicial acts. The right of the defendant is to be judged by each member of the competent body and not simply by a majority of them. "For it is said 'Thou shalt not follow a majority for evil'. I infer that I may follow them for good. If so, why is it said 'To incline after the majority' ? To teach that the majority to incline after for good is not the one to incline after for evil, since for good a majority of one suffices..." (Mishnah Sanhedrin, 1, 6).

This is applied in our Jewish sources not only  to judicial  but also  to quasi-judicial acts, to those which involve a benefit for one person  and a loss for another, as with the imposition of taxation and compulsory payments (Responsa MaHarik, Principle 1), in which  the  majority  is not important unless all were present at one and the same time; and it is only where a different practice has taken root that regulations may be made by majority decision without being sanctioned in plenum (Responsa of Mabit, Hoshen Mishpat, 264).

Although I do not know of any precedent for the election of a Chief Rabbi by a majority of voters not all in session, the question itself arose and created bitter dispute in connection with the restoration of Semichah [appointment and ordination] to the office of  judge in the fourth decade of the sixteenth century. The rabbis of Safed finally decided to act in reliance on a ruling by Maimonides in his commentary on Mishnah Sanhedrin, that the scholars of Palestine can ordain judges

·although they themselves are not ordained, and they accordingly ordained their leader, Rabbi Jacob Berab. The ordination  certificate being despatched to the rabbis of Jerusalem for them to join in the ordina­ tion and in turn receive ordination from the newly ordained rabbi, the leader of the Jerusalem rabbis, Levi Ibn Habib, rejected  it  and argued not only that there was  no warrant  to  revive ordination  but  also that the decision of the Safed rabbis was invalid since although the latter formed a majority of the Palestinian scholars, their majority  decision was reached in the absence of all and although  it is true that the views  of the majority are binding this only  applies in  the case of  a  majority of a complete totality. In the words of Habib,

137 I

 

"It is a positive commandment of the Torah to follow the majority as long as the consensus of the majority ensues from deliberations in which all participate... . But when the consensus of the majority arises without deliberation in which all participate it is no consensus, for had the majority heard the arguments of the minority, they might have acknowledged their force and changed their minds.... In the present matter, it would have been fitting for the majority view to prevail if we had all met together and discussed the matter face to face, or at least consulted through corre­ spondence...and since neither was done,  your consensus of view cannot be regarded as that of a majority."

 

These observations and others of greater length were published by Habib in his Kontres HaSemichah, whereupon  Berab  did  not hold his hand and published a pamphlet of his own in reply. Pamphlets then passed between the parties three times, in the course of which mutual recriminations waxed bitter. At first Berab merely answered Habib's observations that the consensus of opinion of the Safed rabbis was a nullity by observing "Woe to the ears that have heard this" but in his second pamphlet he went over to a personal attack not only by saying that Habib's pamphlet demonstrated that the latter was an ignoramus but by mentioning Habib's past as a Christian when a Portuguese Maranno and contrasting his own clear past, his piety and great learning. Habib stormed back by accusing his opponent of overweening pride and defamation and by suggesting that the Safed Rabbis though numer­ ous were of inferior endowment, whilst the Jerusalem rabbis though few in number were men of high capacity; and what was the worth of a majority if the best were not among them? He also accused the Safed scholars of affronting the Jerusalem scholars and of discourtesy-for had they been deferential how could they have thought of presenting the Jerusalem rabbis with a fait accompli? I only mention these mutual calumnies and accusations to show that there is a precedent for this kind of thing and not to denigrate the reputation of either Rabbi Jacob Berab or Rabbi Levi ibn Habib. For our present purpose, it is fitting  to note that in his reply to Habib's objections, Berab held that a question such as the ordination of judges does not require either consultations or judicial enquiry but simply ordination by the person authorised thereto and thus there was no need for a majority in full session but any majority was competent to act. Special weight attaches to this decision in view of the fact that the great pupil of Berab, Rabbi Joseph Karo, ordained him and also in turn received ordination from his teacher

138

 

 

 
 

 

 

 

 

 

 

 

when the latter was compelled to leave the country and go to Damascus because of Government displeasure.

It was later ruled that in non-judicial matters where it was necessary "to safeguard religious matters when people are urging a departure from sctj.ptural behest and it is essential to set up a fence...all acknowledge that the power lies in a majority  as such to make such  amendments as they deem the situation to require for good public ordering" (Responsa of Maharik, Root 180). And I dare to think that from the point of view of the litigants before  us this formulation  attaches  to  the  question of the election of the Rabbinical Council of present day Israel. It is a religious affair and this generation urges departure from the scriptures, and if the majority as such does not act nothing will be done.

In addition, it is decided law that where a regulation exists that the majority view is to be followed-as it exists in the Election Regulations in respect of the Electoral Committee-"let what the majority decide even without the participation of all be valid and subsisting" (Responsa of Rashdam, Yoreh Deah, 151). In another Responsum  authority is  to be found for the view that if after agreement has been reached on a matter "some die and some move away, the agreement persists" and whatever is done thereafter is valid and subsisting,  although  some are absent (Responsa of Mabit, op. cit.) and in fact there is no alternative, since otherwise a community will never agree upon anything if the power remains in the individual to nullify the agreement  (Responsa of Rosh, Rule 6, Article 5).

In my opinion the orders nisi should be discharged.

 

Orders nisi discharged. Judgment  given on August  29, 1960.

 

 

 

 

 

 

 

 

 

 

 

 

 

139

Attorney General v. Hornstein

Case/docket number: 
Cr.A. 74/58
Date Decided: 
Thursday, February 11, 1960
Decision Type: 
Appellate
Abstract: 

Section 25(1) of the Road Transport Ordinance and section 99(1) of the Municipal Corporations Ordinance provide as follows:

 

"25(1) A municipal...council may, with the consent of the district commissioner and the licensing authorfty, make bye-laws in regard to the following matters-...

(b)         the regulation by prohibition or otherwise of vehicles when stationary within the municipal... area."

"99(1) A municipal council may make by-laws to enable or assist it to carry out any of the matters it is required or empowered to do under...any other Ordinance... and may by such by-laws provide for the payment of any fees...by any person...in connection with such matters."

 

In bye-laws made by the Municipal Council of Tel-Aviv-Jaffa under the above sections provision was made for the designation by the Council of "parking places", and the Mayor was empowered, after consultation with certain officials,  to set  apart a "parking  place", to regulate parking in a "regulated parking place" by an attendant or by means of mechanical devices, and to prescribe different scales of fees for the different regulated parking areas according to the hours of parking, the periods and types of vehicles. The by-laws also provided that a person who contravenes any of their provisions shall be liable to a fine of IL 100.

 

The respondent was convicted by a Municipal Court of an offence against the bye-laws in that he had parked his car in a "regulated parking place" regulated by means of mechanical devices, namely, parking meters, without depositing the fee prescribed in the Mayor's notice which appeared thereon. On appeal to the District Court the conviction was quashed on the grounds that the delegation of powers by the council to the Mayor was ultra vires the powers of the Council under the sections cited, and that the Mayor's regulations regarding the duty to pay a fee at a certain rate were of a legislative character and had not been published as required by law. The Attorney-General appealed.

 

Held, dismissing the appeal:

 

Per Agranat J. (Silberg J. concurring),

 

(1)         the function of the Mayor in designating a parking place as a "regulated parking place" was of a legislative character, while the function of regulating parking thereon by an attendant or by means of mechanical devices was merely administrative in character.

 

(2)         The principle of delegatus non potest delegare is not to be regarded, even to the extent that it 11pplies to the authority of a secondary legislator, as an inflexible rule but merely as a presumption which may sometimes be rebutted, and at least one recognised qualification upon its application is that in the case of a secondary legislator upon whom full legislative authority has been conferred to regulate a number of different matters-power to make primary regulations and not merely rules of an executive nature in relation thereto it may be inferred that the Law from which this authority derives intended by implication to permit him to place upon an administrative body the task of determining when or how the regulations prescribed by such legislator should come into effect.

 

(3)         The provisions of the bye-laws therefore empowering the Mayor to prescribe "regulated parking places" in those places  which had previously been designated as "parking places" by the Council itself, and having done so to determine whether parking thereon should be regulated by attendants or by means of parking meters, should be upheld.

 

(4)         The fee imposed for parking was not only of the nature of a "price" but also of the nature of a "tax", and as the authority to levy a tax emanates from the sovereign character of the supreme legislative organ, if for this purpose it has chosen to be assisted by a subordinate law-making body, the latter must necessarily abide, even to a greater degree, by the principle of delegatus non potest delegare; and as moreover the Council could itself control the fixing of the price either by outlining a  rational basis or mode of action for guiding the Mayor in prescribing "the relevant scales of fees or by fixing a maximum rate for the parking fee, the determination of the scale by the Mayor alone was of no effect.

 

Per Goitein J. (dissenting), the parking fee was not of the nature of a tax, and  the Council had therefore not exceeded its powers in delegating the function of prescribing the fee to the Mayor.

Voting Justices: 
Primary Author
majority opinion
Non-writer
majority opinion
Author
dissent
Full text of the opinion: 

Cr.A. 74/58.

 

ATTORNEY-GENERAL v. HORNSTEIN

 

In the Supreme Court Sittjng as a Court of Criminal Appeal

 

Agranat J., Silberg J. and Goitein J.

 

Administrative Law-Delegatus non potest delegare-Delegation by municipality of its statutory powers to Mayor-Legislative and admin­ istrative functions-Delegation of powers to impose tax-Road Transport Ordinance, sec. 25 (!)-Municipal Corporations Ordinance, sec. 99 (1).

 

Section 25(1) of the Road Transport Ordinance and section 99(1) of the Municipal Corporations Ordinance provide as follows:

 

"25(1) A municipal...council may, with the consent of the district commissioner and the licensing authorfty, make bye-laws in regard to the following matters-...

  1. the regulation by prohibition or otherwise of vehicles when stationary within the municipal... area."

"99(1) A municipal council may make by-laws to enable or assist it to carry out any of the matters it is required or empowered to do under...any other Ordinance... and may by such by-laws provide for the payment of any fees...by any person...in connection with such matters."

 

In bye-laws made by the Municipal Council of Tel-Aviv-Jaffa under the above sections provision was made for the designation by the Council of "parking places", and the Mayor was empowered, after consultation with certain officials,  to set  apart a "parking  place", to regulate parking in a "regulated parking place" by an attendant or by means of mechan­ ical devices, and to prescribe different scales of fees for the different regulated parking areas according to the hours of parking, the periods and types of vehicles. The by-laws also provided that a person who contravenes any of their provisions shall  be liable to a fine of IL 100.

 

The respondent was convicted by a Municipal Court of an offence against the bye-laws in that he had parked his car in a "regulated parking place" regulated by means of mechan­ ical devices, namely, parking meters, without depositing the fee prescribed in the Mayor's notice which appeared thereon. On appeal to the District Court the conviction was quashed on the grounds that the delegation of powers by the council to the Mayor was ultra vires the powers of the Council under the sections cited, and that the Mayor's regulations regarding the duty to pay a fee at a certain rate were of a legislative character and had not been published as required by law. The Attorney-General appealed.

 

Held, dismissing the appeal:

 

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Per Agranat J. (Silberg J. concurring),

 

  1. the function of the Mayor in designating a parking piace as a "regulated parking place" was of a legislative character, while the function of regulating parking thereon by an attendant  or by means of mechanical devices was merely administrative in character.

 

  1. The principle of delegatus non potest delegare is not to be regarded, even to the extent that it 11pplies to the authority of a secondary legislator, as an inflexible rule but merely as a presumption which may sometimes be rebutted, and at least one recognised qualification upon its application is that in the case of a secondary legislator upon whom full legislative authority has been conferred to regulate a number of different matters-power to make primary regulations and not merely rules of an executive nature in relation thereto-it may be infer_red that the Law from which this authority derives intended by implication to permit him to place upon an administrative body the task of determining when or how the regulations prescribed by such legislator should come into effect.

 

  1. The provisions of the bye-laws therefore empowering the Mayor to prescribe "regulated parking places" in  those  places  which had previously been designated as "parking places" by the Council itself, and having done so to determine whether parking thereon should be regulated by attendants or by means of parking meters, should be upheld.

 

  1. The fee imposed for parking was not only of the nature of a "price" but also of the nature of a "tax", and as the authority to levy a tax emanates from the sovereign character of the supreme legislative organ, if for this purpose it has chosen to be assisted by a subordinate law-making body, the latter must necessarily abide, even to a greater degree, by the principle of delegatus non potest delegare; and as moreover the Council could itself control the fixing of the price either by outlining a  rational basis or mode of action for guiding the Mayor in prescribing "the relevant scales of fees or by fixing a maximum rate for the parking fee, the determination of the scale by the Mayor alone was of no effect.

Per Goitein J. (dissenting),

 

the parking fee was not of the nature of a tax, and  the Council had therefore not exceeded its powers in delegating the function of prescribing the fee to the Mayor.

 

Israel cases referred to :

 

  1. Cr.A. 213/56-Attorney-General v. Yeshayahu and Genya Alex­ androvitz (1957) 11 P.D. 695.

72

 

                                                                                                                                 

 

 

 

 

  1. H.C. 220/51-Jemal Mahmud Ass/an and others v. Military Governor ofGp,/i/ee, Nazareth (19 1) 5 P.D. 1480.
  2. H.C. 104/54-Irgun Nehagei-Moniot Sherut Le'Mehoz Tel-Aviv v. Mayor of Tel-Aviv, Haim Levanon, as Local Road Signs Committee within the meaning of Road Transport (Traffic) Regulations, 5713-1953 and others (1955) 9 P.D. 100.
  3. C.A. 300/53-Yosef Woszczyna v. Local Council of Kiryat Ha­

roshet (1955) 9 P.D. 1639,.

  1. H.C. 21/51-N. Binenbaum and others v. Tel-Aviv Municipality

(1952) 6 P.D. 375.

  1. Cr.A. 75/54-Attorney-General v. B. Schreiber and A. Mite/man

(1954)  8 P.D. 927.                                                                   .

  1. C.A. 43/53-The Local Council of Kjar Ata v. "Ata" Textile Company Ltd. (195.,5) 9 P.D. 869.

English cases referred to:

  1. Allingham and another v. Minister of Agriculture and Fisheries

[1948] 1  All E.R. 780.

  1. Ferdinand  Longfield  Speight  and  others v. Isaac Gaunt [1883-84]

9 App. Cas. 1.

  1. The Queen v. Burah [1877-78] 3 App. Cas. 889.
  2. Charles Russell v. The Queen [1881-82]7 App. Cas. 829.
  3. Archibald G. Hodge v. The Queen [1883-84] 9 App. Cas. 117.
  4. King Emperor v. Benoari Lal Sarma [1945] 1 All E.R. 210; [1945]

A.C. 14.

  1. Shannon and others v. Lower Mainland Dairy Products Board

[1938] A.C. 708.

Australian cases referred to:

  1. Croft v. Rose (1957) Argus Law Reports 148.

American cases referred to:

  1. Union Bridge Company v. United States (1907) 51 Ed. 523.
  2. May W. Borum v. H.S. Graham and others (1935). 4 Cal. App. (2d) 331.
  3. Minnie Gould and others v. Western Dairy Products, Inc., and

others (1936) 12 Cal. App. (2d) 188, 191.

  1. Angelo Mecchi, Jr., a Minor, etc. and others v. Lyon Van & Storage Co. (1940) 38 Cal. App. (2d) 674.

(20)     People v. Sullivan (1930) 238 N.Y. Supp. 253; 72 A.L.R. 231.

  1. Samuel C. Taylor v. Abel J. Roberts (1922) 84 Fla. 654; 72 A.

L.R. 231.

73

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

I

I

I

 

'

.I           'j

 

'

 

 

 

 

 

 

 

 

1

J.              '

 

  1. State ex rel. Harkov v. McCarthy (1936) 171 So. 314; 108 A.L.R.

1153-1154.

  1. J.W. Hampton Jr., & Co. v. United States (1928) 48 S. Ct. 348.
  2. City of Birmingham and others v. Hood-McPherson Realty Com­ pany (1937) 108 A.L.R. 1140.
  3. Marion L. Frost and others Co-partners, Doing Business under the Name and Style of Frost & Frost Trucking Company v. Railroad Commission of The State of California (1926) 47 A.L.R. 457.

American Act referred to:

Constitution of the United States of America, 1787, Art. 1,2,3.

Zilbiger and Rivka Dinai for the appellant. The respondent appeared in person.

AGRANAT J. The problem involved in this appeal is of a constitutional character, concerning the legislative powers of a local authority, the Municipal Council of Tel Aviv-Jaffa. The question arose in connection with the following statutory provisions:

(The learned judge cited sec. 25(1) of the Road Transport Ordinance and sec. 99(1) of the Municipal Corporations Ordinance, 1934, and continued)

Relying on these two statutory provisions, the above Municipal Council (hereinafter referred to as "the Council") enacted the "Bye-laws for Tel Aviv-Jaffa (Stationing and Parking of Vehicles), 1945" (Reshu­ mot, 1954, no. 459, p. 1000-hereinafter referred to as "the Bye-laws").

Sec. 1 of the bye-laws contains the following definitions:

'"A parking place' is a place where the parking of vehicles is per­ mitted under section 2.

"'A Regulated Parking Place' is a parking place set apart as a regulated parking place under section 3(a).:'

The following are other sections of the bye-laws which are important

in the present context.

"2. With the approval of the Traffic Commissioner, and after consultation with the Chief of Police, the Council may prohibit, limit and regulate the stationing of vehicles or of a particular class of vehicles, and also designate a street or part thereof or some other place as a parking place in which the parking of vehicles or of a particular class of vehicles is per­ mitted, prescribe the days and hours and the periods when

 

74

 

                                                                                                             

 

 

 

 

parking is permitted, and the number of vehicles which may at any one time park in such place.

3. (a) The Mayor may, after consultation with the Traffic Commissioner and the Chief of Police, designate a parking place as a regulated place and regulate parking thereon by·an attendant or by means of mechanical devices.

  1. Where parking is regulated by an attendant, a person leaving a vehicle in the parking place must comply with the instructions of  such  attendant  in  every  manner  pertaining to parking.
  2. Where parking is regulated by mechanical devices, a person leaving a vehicle in the parking area must leave it within one of the vacant spaces marked therefor, opposite the mechanical device allotted to such space, and set the mechan­ ical device in operation in accordance with the directions stated thereon.

1I. (a) No person shall station or park, or permit another to station or park, a vehicle in a regulated parking area unless he has paid a parking fee in accordance with the scale of fees prescribed for that parking place under subsection (c).

  1. The Mayor, with the consent of the Traffic Commis­

sioner, may prescribe different scales of fees for different regulated parking areas, according to the hours of parking, the

I

periods and types of vehicles.

  1. The scale of fees as prescribed under subsection (c) shall be set out in a notice by the Mayor and publicly displayed in the regulated parking area or upon the mechanical devices.

(f) Where parking is regulated by means of mechanical devices, the fee shall be inserted in the mechanical device by a coin or by a special metal token in accordance with the direc­ tions for use which shall be set out upon such devices.

  1. A person who contravenes any of the provisions of these By-laws shall be liable to a fine ofIL 100."

 

It is not in dispute that on November 19, 1956, the respondent stationed his car in one of the streets of the city of Tel Aviv-Jaffa in a place where parking was permitted under sec. 2 of the the bye-laws, which had been designated by the Mayor as a place where parking

75

 

 

 

 

was "regulated" by means of a mechanical device (hereinafter referred to as a "parking meter") under sec. 3; likewise, that the  respondent did not deposit in the meter-and therefore did not pay-the fee prescribed in the Mayor's notice which appeared thereon. On these facts, the respondent was found guilty by the Municipal court, in his absence, of an offence under secs. 1l(a) and 14 of the bye-laws, and ordered to pay a fine amounting to IL 4. He appealed against the con­ viction to the District Court and his appeal was allowed upon the following grounds:

  1. The effect of the provisions  enacted in secs.  3(a), 1l(a) and  1 l(c) of the Bye-laws is that the Council had delegated to the Mayor the authority conferred upon it at the time by Mandatory legislative organ pursuant to sec.  25  of  the  Road  Transport  Ordinance  and sec. 99(1) of the Municipal Corporations Ordinance, but such delegation of that authority was not permissible and ultra vires the Municipality's powers in view of the principle delegatus non potest dele[f_are. For this reason, the regulations made by the Mayor pursuant to secs. 3(c) and 1l(c) of the bye-laws were likewise lacking in legal force. To support this ground, the District Court relied upon the rule in Allingham v. Minister of Agriculture and Fisheries (8).
  2. The Mayor's regulation regarding the duty to pay a fee at a certain rate made by virtue of sec. ll(c) of the bye-laws is ofa legislative character and required publication in Reshumot in accordance with sec. 17 of the Interpretation Ordinance. As for this ground, the District Court based itself on the rule in The Attorney-General v. Alexandrovitz (1).

 

.

I shall now deal with the first and main reason of the District Court. In this regard, I shall first of all confine myself to the question of the validity of the provisions  of sec. 3(a) of  the bye-laws.  I  hold, contrary to the District Court, that the Council was authorized to enact these provisions and accordingly that the designation of the "regulated area" involved, which was made by the Mayor by virtue thereof, is valid. My reasoning on this point is as follows:

 

  1. The decision in the Allingham case (8) is not relevant because

:                                                            all that was decided there is that the principle that an agent cannot delegate precludes the delegation to another of a function of an admin­ istrative character by the one upon whom such function has been im­ posed. That rule is construed in this sense in Allen, Law and Orders (2nd edition) pp. 204-5, and also in Griffith and Street, Principles of Administrative Law. I will merely content myself with citing the first author:

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/

 

 

" ...it is clear...that any administrator,...if certain specific executive functions are committed to him,...cannot, without authority, entrust them to a deputy of his own choice."

This rule is not germane to the present case since the authority conferred upon the Municipal Council under sec. 25 of the Road 1:ransport Ordinance to enact by bye-law provisions regulating ·the parking of vehicles within its boundaries, is clearly of a legislative character. Moreover, in view of the wide language employed-"to regulate parking... by prohibition or otherwise"-the section is to be construed as vesting in the Council the power to determine even the "primary law-making" in this sphere and not merely the executory regulations. (As to the distinction between these two categories of second­ ary legislation, see an article by Professor H. Klinghoffer, Praeter Legem Regulations, in 14 Hed HaMishpat, 1957, p. 245, 257). Con­ sidering the broad character of the legislative authority  conferred upon the Council, no doubt whatever  can arise  regarding its power  to provide by bye-laws intended to regulate the parking of vehicles within its boundaries for the administrative functions which it has placed upon the Mayor to carry out for this purpose. Such bye-law provision wo ld accordingly not involve any "delegation" to another of a function of this character by one charged to carry it out. Therefore,  if the matter of designating a "regulated place" and the regulation of parking thereon by means of a parking meter constitutes a function of an administrative character, the provisions of sec. 3(a) of the bye-laws do not conflict howsoever with the principle of delegatus non potest delegare and are valid. But even if these provi.sions must be treated as conferring upon the Mayor a function of a legislative character, the question still remains whether the said principle is applicable to a situation in which a body which has been granted power to regulate a given matter by means of secondary legislation, purports to yield some of its legislative authority to another. This is evident from the following observation of Allen's (ibid.) when dealing with this question: "In respect of legislative func­ tions, however, the position is not so clear." Be that as it may, the rule in Allingham's case (8) does not assist us in the present case.

  1. From what has been said in the preceding paragraphs it follows that the first question which we must resolve is whether the function dealt with in sec. 3(a) of the bye-laws-the designation of a "regulated place", etc.-is administrative or legislative. We all know that it is sometimes difficult nowadays to determine the quality of a function assigned to some or other body or official, in regard to whether it belongs to one or the other of these two categories. One of the factors

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giving rise to  this  difficulty  is  that  in  many  instances  the  legislative and administrative characteristics of  a  given  function  are  intermixed. Thus in England the report of  the  Committee  on  Ministers'  Powers, (Cmd.  4060)  published  in  1932, emphasized  (at p. 95):                                                                                         ,

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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"It is indeed difficult in theory and impossible in practice to draw a precise dividing line between the legislative on the one hand and the purely administrative on the other; admin- istrative action so often partakes of both legislative and executive characteristics."

 

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If we consider the content of sec. 3(a) carefully, we are persuaded that a dual function was placed upon the Mayor, or at least, one which is partly legislative and partly administrative. Firstly, he may determine that a place in which parking has been permitted by the Council, in accordance with sec. 2 of the bye-laws, shall be a "regulated" parking area. What such determination means is that any  person who parks his vehicle in that place must comply with the directions of the attendant who is present or the "instructions" upon the parking meter found there which he is to set in operation (Sec. 3(b)). Secondly, after  he has decided that a certain "parking place" shall be a "regulated" place, the Mayor must choose between two parking arrangements which are to be applied-regulation by an attendant, or by means of a mechanical device; and, having made the choice, it becomes his duty to put it into effect accordingly. Indeed, it may be supposed-since it is in the nature of things-that the Mayor will in practice carry out both such functions simultaneously and even be guided, as regards each of them, by the same considerations. In theory, however, it is possible to separate the two; for example, it is not impossible that the Council would assume the task of determining the "regulated" places, leaving to the Mayor only the decision as to the choice of one of the two parking arrange­ ments-attendant or meter-which must be made with regard to such places.

 

Reverting now to the question posed at the beginning of  this section, my answer is that the first function is to be regarded as of a legislative character but the second  as of  an  administrative character. To support this conclusion, I rely on the decision in Attorney-General v. Alexandrovitz (1) from which it appears that the distinguishing features of a regulation of  legislative  effect  are  "first,  that  it  should  establish a  legal  norm"  (rule  of  conduct)  and  thereby  bring  about  a  change in the law of the country,  and secondly, "that  this  should  be a general or  'abstract'  norm,  i.e.  a  norm  directed   to  the  public  generally,  or at least to an indefinite part thereof." It was accordingly held in that

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case that the prescription of a mark of identity for merchandise subject to purchase tax by the Director of Customs and Excise (by virtue of the

  • authority granted to him under sec. 15 of the Purchase Tax Law, 1952) constitutes a provision of legislative effect, inasmuch as it "adds an obligation which, apart from  it,  would  not  exist"  (ibid,  p.  702).  In his judgment,  Sussman  J.  followed  the  decision  of  the  High  Court of Justice in Ass/an v. Military Governor of the Gali/ (2), which held that it was essential to treat as of legislative character an order issued pursuant to sec. 125 of the Emergency Defence Regulations, 1945, because the effect of the 9rder was to limit freedom of movement enjoyed previously by citizens in the region which had been proclaimed a closed area by the order.

This rule is also applicable to the designation of a particular parking area as a "regulated" place, since the two distinguishing features which characterize a legislative regulation exist in relation thereto: (a) the designation constitutes  a  provision  directed  to  an  indefinite  portion of the public, namely, the class of persons who need to park their vehicles in a place as aforesaid; (b) its effect is that those persons have to obey the attendant present at the regulated place, or to set the parking meter in motion, whereas before the designation  they were under  no  obligation to observe either of these rules of conduct. I must add that it is possible that the definition upon which I have based this conclusion cannot be reconciled with the view expressed in IrgWl Nehagei Moniot Sherut v. Mayor of Tel Aviv (3), with regard to the character of a  decision  to erect traffic signals, made pursuant to Reg. 111 (a) (2) of the Transport (Traffic Rules) Regulations, 1953. I do not intend to dwell at  length upon this matter except to observe that that view was obiter and was not required for determining the question which was considered in that case (see, ibid. (3) p. 102, between the letters C and D).

As for the function of regulating parking in a "regulated" place by the use of one of the two methods provided therefor in the bye-laws, I find that the decision of the Mayor thereon lacks the distinguishing feature of a "change in the law" and that consequently its character is merely administrative. The duty resting upon one who has put his vehicle in a parking place as aforesaid-to obey the attendant or to activate the meter-flows from the provisions of sec.  3, subsecs.  (b) and  (c) of  the bye-laws, as well as from the designation of the place by the Mayor as a "regulated" place. The fact that the choice of one or the other of the two forms of regulating parking requires the exercise of a certain discretion on the part of the Mayor cannot bestow upon this function any legislative character whatever. If it were otherwise, it would mean

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that it is impossible to impart to any function whatever an administrative character when to carry it into effect demands the exercise of discretion. Such is not the case.

I have deemed it p oper to dwell on the  theoretical  distinction which is to be drawn between  these  two  functions,  not  only in  order to give a precise answer to the above-mentioned question but also to forewarn that due to the close connection which  exists  between  them the distinction may have an important  legal consequence.  For example, it can be argued that whilst the act of designating a "regulated" place requires public notice, the same does not apply to the function of regulat­ ing parking in such a place by means of an attendant or a parking meter. In the report of the English Committee above-mentioned it was likewise stressed that

"to take any set of regulations and conclude that, because they are primarily administrative, they can be disregarded as having no legislative aspect may often be wrong."

  1. The upshot of this is that the question which we have to answer at this stage is whether the District Court was right in holding that the Council did not have the power to delegate to the Mayor the legislative function of designating "regulated" places.

I                                                               To justify this conclusion, the respondent stressed that sec. 25(1) of the Road Transport Ordinance-the source of the Council's authority to regulate parking-says that it "may make by-laws" for  this  pur­ pose, from which it is inferred that it has the power to carry out such function in this matter alone and that therefore it may not be aided to this end by the Mayor or anyone else. The respondent found support

for his argument in Woszczyna  v. Local Council of Kiryat Haroshet (4),

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in which it was  decided  that  since Art.  40(2)  of  the  Palestine Order in Council 1922 provided that the appellate jurisdiction of the District Courts may be extended "as may be prescribed by any ordinance," the Palestine legislator could not thereby nominate any other person for this purpose wi1;h the result that sec. 84(a) of the  Local  Councils  Order (A), 1950, made by the Minister of the Interior by virtue of sec. 5(2) of the Local Councils Ordinance, 1941, (as amended  in 1947), according  to which the District Courts were authorized to hear appeals from a decision of the appeals committee in connection with tax assessments, was not lawfully enacted. In other words, just as the limitation  inherent in the words "as may be prescribed by any ordinance" in the Palestine Order in Council prevented the High Commissioner from nominating another to carry out the task of extending the appellate jurisdiction of

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the District Courts, so the limitation implicit in the words "may make by-laws" precluded the Council from designating the Mayor as  the person to make legislative arrangements for  regulating  parking within its boundaries.

It should be noted that there is nothing in common between this argument and the principle of delegatus non potest delegare by which the District Court judges were guided, since this argument relies upon the language used by the legislator, which in the respondent's opinion forbids in and by itself the Council to give up to another any of its powers in the matter under consideration, whereas the said principle is im'.oked­ for the purpose of deciding whether to nullify the transfer of power which some Law has conferred upon an authority-when no prohibition is expressly prescribed in that law. Similarily in the _Woszczyna case (4) from which the respondent drew. an analogy to the instant case, the Deputy President (Cheshin D.P.) emphasized that "there is no question here of a delegation of authority from one agent to another, but of adhering to express limitations which have been laid down by superior le slation" (at p. 1646).

As for the argument itself, I think it is untenable. In the Woszczyna case, the enabling provision was devoted to a specific limited objective, to enable the appellate jurisdiction of the District Courts to be extended, and since the provision had clearly prescribed that the method to be followed for extending such jurisdiction was by enactment of an "ordi­ nance", there was no avoiding the conclusion that this restriction con­ stituted an express prohibition upon the delegation of the power for achieving the result to one not  authorized  to  enact  "ordinances".  On the other hand, we have seen earlier that the enabling provision in the present case, in sec. 25(1) of the Road  Transport  Ordinance,  is  de­ voted to regulating  the  entire  field  of  matters  pertaining  to  parking  of vehicles within the boundaries of local authorities, and in view of the wide terms conferring the power upon the Municipality to do so within  its own area, which indicates that it was also empowered to  prescribe "the primary regulations" in this connection, it  is  impossible  to  hold ipso facto-merely in reliance upon the words prescribing  that  the Council may effect this purpose by means of bye-laws-that it is for­ bidden to delegate to the Mayor the task of formulating the "details" required for the putting into  effect  of  the  regulations  prescribed  by it in the bye-laws it has enacted. Such an "automatic" inference is not possible even if the prescription of such details bears a legislative char­ acter. This may be seen from the view expressed by Griffith and Street, op. cit. (p. 69), that

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"If the Minister is empowered to make subordinate legislation, it is suggested that his power to authorize himself or others by such subordinate legislation to make sub­ delegated legislation depends on the generality of the statute and the extent to which the powers to legislate are there defined. If the statute is so widely phrased that two or more 'tiers' of subordinate legislation  are  necessary  to  reduce it to specialised rules on which action can be  based,  then it may be that the courts will imply the power to make the neces­ sary subdelegated legislation."

Nevertheless, I do not in this part of my judgment adopt this view and have only mentioned it to show that in face of the "generality" of the language of the enabling provision in the present case and the extent of the powers thereby granted to the Council in order to enable it to regulate matters of this kind, it is impossible to hold that there is an express prohibition on delegating the functi_ n of designating "reg­ ulated" parking places to the Mayor, and that therefore the real pro­ blem calling for solution is whether it is possible for us to hold that this provision impliedly confers upon the Council power to authorize the Mayor to perform that function. The solution of this problem does indeed depend foremost upon the answer to the question whether the principle of delegatus non potest delegare, the principle invoked (if at all) only in those cases in which the statute has not expressly ·forbidden the delegation of powers granted to some authority, is applicable here. Whatever the answer to that question, it is clear in any event that the grounds upon which the respondent  sought  to support  the decision of the learned judges below are quite baseless.

  1. To persuade us that that principle is irrelevant in the present context Mr. Zilbiger who appeared for the appellant pointed out, firstly, the dictum of Witkon J in  the  Woszczyna  case  (4),  that  "in  the absence of a different provision" "the legislative power granted to a non-sovereign legislative organ may be delegated" (at p. 1646). He argued further that the extended form-in sec. 25(1) of the Road Trans­ port Ordinance-of the Council's powers to regulate parking arrange­

ments within its area indicates to us that within the limits of these powers it constitutes a sovereign body which in such matters may

either itself legislate, or delegate the power to legislate to another. Counsel for the appellant found support and an analogy for this sub­ mission in what the Deputy President (Cheshin D. P.) said in the Woszcz­ yna case (4) about the position of the Palestine legislator of the time, namely,  that "he  was not in any sense the delegate or  proxy of the King

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in Council" even though "he drew his strength and derived his authority from the provisions comprised in the  Palestine  Order  in Council" but that "within the limits of this authority, he was himself sovereign and might himself legislate directly or delegate his law-making power to another, even as those who had promulgated the Order in Council" (ibid). Finally, Mr. Zilbiger emphasized the politically "autonomous" and "independent" character of the Municipal Council, in the sense that its members were chosen by the local inhabitants in free elections. The democratic character of this body, so he argued, is enough to negative any possibility of regarding it as a kind of delegate, i.e. a representative or agent of the sovereign legislator as to the matters which it was empowered to regulate by legislative means and that also from this point of view the principle aforesaid is not to be applied in the instant case. In this connection appellant's counsel drew our attention to a passage in Hart, Local Government and Administration (5th ed.) p. 6, on the independent status of local authorities in England:

 

"In the first place local authorities are legally independ­ ent, entities. They have separate legal existence as corporate bodies; they are not mere off-shoots of the Central Govern­ ment....

"Secondly, in modern times local government is admin­ istered by local authorities each acting in a particular area and elected by the inhabitants of that area. This dependence on local election serves in the political sphere to support the legal independence of local authorities. Local authorities are neither legally nor politically the agents of the Central Government."

 

And also to Klinghoffer, op. cit. (p. 257):

"Such secondary legislation"-meaning, secondary legislation of the praeter legem variety- "is made by in­ dependent local authorities chosen by the residents of their defined jurisdictional area. Like the rule of Law, municipal autonomy is also a combination of democratic and liberal elements."

 

These submissions  of  counsel-which  signify  that  within  the limits of  its  legislative  competence  a  municipal  council  constitutes an "omnipotent" body-strike me as excessively far-ranging. I shall deal with them in the reverse order.

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  1. Notwithstanding the democratic nature of the Council's composition, it is impossible to hold that it is independent of the control and supervision of the central government in matters which it has been charged to regulate by secondary legislation. For example, sec. 99(4) of the Municipal Corporations Ordinance expressly provides that no bye­ law enacted by a council shall have effect until it is approved by the Minis­ ter of the Interior. Professor Klinghoffer also concedes that "our local government is subject to onerous control and supervision by the central government and, in many matters, to its discipline and  benevolence as well". He says further:

"As to secondary legisl tion entrusted to local councils, the said nexus of subordination expresses itself in that bye­ laws and certain kinds of general local government decisions require the approval of the central government."

It follows that a comparison  of  the status of a  municipal  council  in Israel with that of a local government council in England is not one which can be of assistance for the eeds of the present case.

It is true that when enacting bye-laws on a matter committed to its competence, the council acts in its own name and not in that of the sovereign legislative authority. It is conceivable that by emphasizing this point, counsel for the appellant started from the premise that the term "delegatus" in the Latin maxim has only the meaning of "rep­ resentative" or "agent", since one of the characteristic qualities of th agency relationship is that the agent is a person who acts for or on behalf of the principal so that whatever the former does within the scope of his authority is attributable to the latter. Accordingly Mr. Zilbiger argues that the Council is not the legislative "delegatus" of the sovereign law-making authority. One answer to this argument is that the authorising body possesses additional qualities the existence of which also characterizes the legal relationships subsisting  between the municipal council and the sovereign law-making authority in connection with the competence of the former to enact auxiliary laws, no less than they are characterized by the absence of the quality referred to by counsel. I refer here to the principal's power to control and main­ tain continuous supervision over his agent's activities, to limit his authority at any time and to revoke it, and even to take independent action in matters which he has been authorized to do.

My other and the main answer to that argument is that the terms "delegatus" and "agent" are not regarded today as necessarily synony­ mous for the purpose of applying the principle de/egatus non potest

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delegare. For example, in English private law, a distincti n is drawn between agent and trustee in that the former is limited by the instruction he has received from his principal, from which he may not deviate to any extent whatsoever, whereas the latter may generally exercise a wide discretion as to the subject matter of the trust. And so in the Com­ mon law the rule has been established that because of this quality characterizing the function of the trustee-namely, precisely because those who appoint another to act as trustee do so in reliance upon his personal qualification to exercise the discretion  proper to the matter in which he is required to act-the prohibition of the principle applies to him and therefore he may never delegate his authority (except as  to matters of a technical or ministerial character) to a third  person (See Speight v. Gaunt (9); also Richards, Delegation in Local Govern­ ment, p. 33). This approach, behind which lies the rule aforesaid and which enables the principle forbidding the delegation of delegated authority to be applied even to one who does not act as such in the legal technical sense, embraces the justification for its application also to matters relating to constitutional law. Thus, Dr. de Smith in his recent books, Principles and Scope of Judicial Review (p. 171), writes:

 

"A discretionary power must, in general, be exercised only by the authority to which it  has  been committed.  It  is a well known principle oflaw that when a power has been con­ fided to a person in circumstances indicating that trust is being placed in his individual judgment and discretion, he must exercise that power personally unless he has been ex­ pressly empowered to delegate it to another. This principle, which has often been applied in the law of agency, trusts and arbitration, is expressed in the form of the maxim delegatus non potest de/egare....The widespread assumption that it applies only to the sub-delegation of legislative powers...is unfounded."

It is superfluous to emphasize that the exercise of any kind of law­ making power necessitates recourse to discretion by the one exercising such power, which explains the view of this scholar that generally the said principle applies equally to one upon whom the power to enact secondary legislation has been lawfully conferred, and this even

"where  legislative  powers  are   delegated   by  Parliament, or validly sub-delegated by Parliament's delegate, the delegate or sub-delegate exercises his powers in his own name."

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Plainly the fact that the municipal council when it makes bye-laws acts in its own name does not-even though it permits the inference that that body is not then acting as the agent of the sovereign legislative authority-strengthen the argument of counsel for the appellant. Moreover, in as far as it is necessary to take account of the fact that the council constitutes a body of a democratic complexion and that the responsibility of its members is primarily to the electorate, the local residents, I think that this fact is antithetical to the argument. Just because the exercise of wide discretion is involved in the operation of the power, those resident-voters are entitled to expect that their representatives will not rid themselves of the responsibility they bear towards them but will  themselves  exercise  the  said  discretion-as far as it relates to carrying out of the law-making task imposed upon them-and not delegate it to others.

 

  1. Likewise, there is no firm basis for the analogy which counsel drew between what Cheshin D.P. said in the Woszczyna Case (4) and the present case, that just as the Pale tine legislator was sovereign in the law-making sphere with the authority he had derived from the Palestine Order in Council and was therefore permitted to delegate it, so the municipal council is also sovereign in the realm of the legislative power conferred upon it and it also may delegate part thereof to another.

 

The justification for the view which attributes a "sovereign" character  to  the  legislative  authority  of  the  Palestine  legislator  lies in the broad and inclusive phraseology in which this is formulated  in  Art. 17(1) (a) of the Palestine Order in Council (as amended in 1923), pursuant to'which the High Commissioner (subject to certain restrictions not germane here)  had  the  power  to  enact  any  Ordinance  required for ensuring "peace, order and good government" in Palestine. What this power meant was that the High Commissioner could currently,  within the limits of his jurisdiction, enact any  Ordinance  he  pleased,  whether it was desirable or undesirable, reasonable or unreasonable. It  is clear that the same does not apply to the bye-laws which a municipal council may make and which, as is generally known, must always pass the test  of reasonableness (Binenbaum v. Municipality of Tel Aviv, (5)). This difference in the nature of the legislative competence conferred upon each of the authorities aforesaid requires us to attribute a "sovereign" character to that which the Palestine legislator at the time used to exercise and a non-sovereign character to that which a municipal council ex­ ercises. In their book The Constitutions of the Commonwealth, at

p. 47, Jennings and Young observe:

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"Within its po:wers a legislature, unlike a local authority

...can pass what legislation it pleases. It has been said that a colonial legislature is 'sovereign' within its powers. To a political scientist this phrase is nonsense, for the essence of sovereignty is.that powers are unlimited. But it is a convenient way of stating that a power to legislate for the peace, order and good government of a colony is a power to enact any kind of legislation, reasonable or unreasonable, desirable or undesirable...The bye-laws of a local authority may be declar­ ed invalid because they are unreasonable. There is no such power over colonial legislation."

 

Thus as soon as we attribute a "sovereign" character to the legisla­ tive authority which the ·Palestinian law-maker possessed, we are com­ pelled to concede his power to make it over to others. In contrast, since we have not found it at all possible to attribute such a character to the authority of the council to enact secondary legislation, it is impossible that we should, on the basis of the "sovereignty" theory or the "analogy" rule, render valid the delegation of that authority to anyone in the absence of an express provision in that behalf by the sovereign legislator

(see Jennings and Young, op. cit., pp. 47-8.)

I

  1. From what has already been said, the rule would seem to be that the principle delegatus non potest delegare operates equally in the legislative sphere and therefore I cannot agree to the generaliza­ tion that "in the absence of a provision to the contrary, the law-making power granted to a non-sovereign legislator may be delegated". I said that this "would seem" to be the rule because I think it would not be right for us to treat it as a rigid rule from which one may not depart whatever the conditions. Even Allen-while expressing the view that"in principle" it would amount to ultra vires if the "legislative agent" were to put another in his place-admits that it is still impossible in the absence of a line of clear decisions to speak of this with "confidence" (op. cit. p. 205). I have also noted the views of Griffith and Street about the possibility that the court might construe a particular statute as impliedly authbrizing the secondary legislator to charge some other organ with the task of enacting "detailed regulations" whereby the arrangements prescribed by the secondary legislator would  be put into effect. However, they also emphasize that no authority exists upon this point and  that  therefore  a "more dogmatic"  view cannot be expressed (op.cit. p. 69). Finally, de Smith (op.cit. pp. 175-6) indicates his approval of the following view:

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"The maxim delegatus non potest delegare does not enun­ ciate a rule that knows no exception; it is a Tule of con­ struction to the effect that a discretion  conferred  by a statute is prima facie intended to be exercised by the authority on which the statute has conferred it and by no other authority, but this intention may be negatived by any ·contrary in- - dications found in the language, scope or object of  the statute."

In my opinion therefore the said principle is not to be regarded­ even to the extent that it applies to the authority of a secondary legislator

-as an inflexible rule but merely as a presumption, a presumption which may sometimes be rebutted. The question under  what  circumstances this can be done when no express provision exists, what are the limits within  which the application  of  the  principle in the legislative sphere  is to be confined-this question  has  not  as  yet  been  fully  answered. But I am certain that there exists at least one qualification upon its application, which all acknowledge and which is pertinent in the present context.

  1. I now turn to the qualification dealt with by appellant's counsel in his further submission which is less far-reaching than the "sovereignty" argument upon which he relied. The qualification  is that in the case of a secondary legislator upon whom full legislative authority has been conferred to regulate a number of different matters-power to make primary regulations (and not merely "rules of an executive nature") in relation thereto-it may be inferred that the Law from which this authori­ ty derives intended by implication to permit him to place upon an admin­ istrative body the task of determining when or how the regulations prescribed by such legislator should come into effect. The justification for making this qualification is based upon the demands of political reality, with the object of ensuring that the affairs of state are regulated and conducted efficiently, and in the general recognition that otherwise the "wheels of government", especially in the complexities of modem life, will not be able to "turn". What I wish to say is that the time is not always appropriate for enforcing the legislative arrangements in which the secondary legislator is interested and its introduction to a particular place is not always expedient, since the matter depends upon the pre­ vailing factual conditions, and uch conditions are likely to vary in respect of both time and place. Nonetheless, it is sometimes desirable, prevention being. better than cure, that the arrangements should be fixed in anticipation and the actual execution thereof be subject to future decision on the question whether in point of time or place the

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conditions suitable therefor exist. Thus !1 secondary legislator charged with the task of finding fundamental solutions to broad topics, varied and numerous, has no available time-and if it is comprised of a body pursuing the legislative process along parliamentary lines, wµl find it difficult-to inquii:e daily whether the factual conditions are appropriate and suitable for putting into effect the special arrangements with which it is concerned. It is therefore better for it to assign the task to an ad­ ministrative body and delegate to the latter the function of deciding, in the light of the factual inquiry it has carried out, whether  the time is ripe or the place suitable for bringing the arrangements into force.

It is true that such a decision on  the  part  of  this  administrative body cannot be reached without prior exercise  of  its  discretion.  It  is also true that the determination of time or place in which the arrange­ ments of the secondary legislator should apply constitutes-so  the definition with which we dealt above in paragraph A requires-the enactment of regulations of legislative import. It follows that the ap­ proach which countenances the delegation of such a task by the secondary legislator  to  an  administrative  body  represents  indeed  a  departure from the principle delegatus non potest delegare.- Yet, as to the first concomitant, it may be observed that even the carrying out of obvious administrative functions sometimes requires  the  exercise  of  discretion by those charged therewith. Furthermore, the fact that the result of the factual inquiry which the administrative  body  has  made  must  be  its sole guide when making its decision means that the exercise of its dis­ cretion will cover a  rather  narrow  area.  As to  the second  concomitant, it may be said that for all the legislative character of the function carried out by administrative body in this situation it also represents the "apparatus" which enables the implementation of the arrangements prescribed by the secondary legislator in its regulation and  from  this point  of  view there is really  nothing  extraordinary  in committing  such a task to one who is accustomed to carry out executive functions. These two points which I have singled out-restricting the area in which the . administrative body exercises discretion and devoting its legislative function  toward  an  "operational"-"executive"-purpose  minimize  to some extent the deviations from the basic principle with which we are concerned.

Authority for the said qualification and for its justification is to be found in English and American d isions to most of which counsel for the appellant drew our attention. Before citing some part of what has been said on the subject in these authorities, I must by way of preface make one observation. A perusal of these authorities makes it apparent

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that the courts in approving the said rule do not admit that they are thereby validating a departure from our fundamental principle. The magic formu a which they invoke-this is mainly true of the English decisions-is that the legislation which makes the implementation of the arrangements, the object of the legislation, dependent upon the "factual" decision of an administrative body is merely conditional legislation and does not therefore involve the delegation of legislative

' authority to anyone. A different formula-and this is mostly true of the American cases-is that the function of determining when and where the legislative reform which has been prescribed shall apply is of an admin­ istrative character. In my opinion no other explanation exists for this un sual approach by the judiciary than that traceable to theµ- strong desire  to remain  loyal to the principle  that an agent may not appoint

/                                   a sub-agent, in the light of their premise that this principle does not toler­ ate-in the absence of any provision in that behalf by the sovereign leg­ islator-the slightest derogation. This is also the view of de Smith, (op.cit. p. 176):

 

"the  Courts  have  sometimes  assumed  that  the  maxim does lay down a rule of rigid application, so that devolution of power cannot (in the absence of express  authority)  be held to be valid unless it is held to fall short  of  delegation. In this way an unreasonably restricted meaning has often been given to the concept of delegation."

 

I proceed now to the authorities which I divide into these three categories: (1) English decisions; (2) Decisions of the Supreme Court of the United States; (3) American decisions dealing with a secondary legislator being a local authority.

 

  1. To the first category belong: The Queen v. Burah (10); Russell v.

The  Queen (11);  Hodge  v. The  Queen (12);  King-Emperor v. Benoari                                                                                           '

Lal Sarma (13).

 

In the Burah (10) case, the question was whether the then Indian legislature might prescribe by a statute ·in which it had revoked the criminal jurisdiction of the High Court in certain regions in Bengal province and vested it in the local courts of those regions that this provision should come into effect only from such a day and in such regions as would be determined by the Lieutenant Governor of Bengal. This question was answered  in  the  affirmative  by  the  Privy  Council in holding:

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"Where plenary powers of legislation exist as to par­  ticulat subjects...they may...be well exercised, either abso­ lutely or conditionally. Legislation, conditional on the use of particular powers, or on the exercise of a limited discretion, en­ trusted by the Legislature to persons in whom it places con­ fidence, is no uncommon thing; nd, in certain circumstances, it may be highly convenient. ... It cannot be supposed that the Imperial Parliament did not, when constituting the Indian Legislature, contemplate this kind of conditional legislation as within the scope of the legislative powers it from time to time conferred."

I am fully alive to the fact that this case involved a "territorial" legislature which derived broad legislative powers from a statute of the British Parliament and that the decision of the Privy Council was influenced by the notion that such legislature is "sovereign"  within the area of its authority and may not therefore be regarded as the "legislative agent" of  the British Parliament  (p. 904).  Nevertheless,  I think that the words I have quoted from the judgment reflect an additional reason, and perhaps even the main reason, for the decision since otherwise they would have been superfluous. Thus this reason  is equally valid as to a secondary legislator to whom "plenary" legislative powers have been granted for the purpose of regulating "particular" matters, in the sense of the authority to prescribe therefor "primary regulations"; hence the qualification to the prohibition under con­ sideration, which we discussed above.

The same is also true of the three other cases. For example, in the Hodge case (12) the justification for making the said qualification is explained in language which differs in no respect from the "sovereignty" approach, as follows:

"Such an authority is ancillary to legislation, and with­ out it an attempt to provide for varying details and machinery to carry them out might become oppressive, or absolutely fail. The very full and very elaborate judgment of the Court of Appeal contains abundance of precedents for this legislation, entrusting a limited discretionary authority to others, and has many illustrations of its necessity and convenience. It was . argued at the bar that a legislature committing important regulations to agents or delegates effaces itself. That is not so.

It  retains its powers  intact,  and  can,  whenever  it pleases,

destroy the agency it has created and set up another or take the matter directly into its own hands.•,

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Similarly in the Benoari La,/ Sarma case (13):

"This is not delegated legislation at all. It is merely an example of the not uncommon legislative arrangement by which the local application of the provision of a statute is determined by the judgment of a local administrative body as to its necessity."

The Australian case of Croft v. Rose (15) in which the Burah decision was applied to the regulation of a secondary legislator is of inestimable importance. The regulation involved was enacted by the Governor General in Council and provided that driving above a certain speed on those parts of the state highways which required to be lighted was for­ bidden. In  adopting  this regulation,  the Governor  General  relied upon a 1951 statute under which he was granted the power to fix a maximum driving speed limit along any highway or section thereof. The Australian court held that regulation to be lawful, notwithstanding  the  fact  that care of the light  arrangements  of parts of  the highways  was in charge of others. In their reasons, the judges constituting the majority emphasiz­ ed these three points: (i) Whilst the matter involves a question concern­ ing the effect of a regulation passed by a subordinate law-making authority, the question must be examined against the  wide power which it derived from  the statute which authorized  it  to  regulate  the matter  of the speed of driving upon the highways. (ii) This approach justifies the application of the rule in the Burah case to the matter under consideration with the inevitable result that there was no defect in the regulation providing that the direction as to maximum speed should come  into effect for those portions of  the highways  which  would  be designated by others. (iii) While it is true that such a regulation amounts to a delegation to others of legislative power committed to a subordinate law-making authority, the delegation of the task of determining the limited question as to when and where the regulation should operate is permissible. As to this third point, it is as well to quote from the judgment:

"The most that could be said in favour of delegation was that the Governor-in-Council had placed in the hands of persons other than himself the power to determine when and where the provisions of the regulation should operate. But this does not amount to a delegation that has, as we under­ stand the matter, ever been considered as objectionable or as going to power."

  1. In the Supreme Court of the United States the question  before us arose in connection with the authority of Congress to bestow some

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of its legislative power upon an executive authority in view of the doctrine of the separation of powers which constitutes a corner stone of the constitution of the United States (Articles 1, 2 and 3) and which seems to prescribe,that none of the legislative, executive or judicial branches should encroach upon the domains of each other (See Corwin, The Constitution and What It Means Today , pp. 2-3). Notwithstanding this doctrine-and it is pari passu with the principle de/egatus non potest delegare (ibid. p. 113)-the Supreme Court ruled in keeping with the above-stated qua ification. I shall content myself here with quoting from one decision to that effect. In the case of Union Bridge Co. v. U.S. (16), the statute considered was one which required the Secretary of War, upon finding that any bridge constitutes an obstacle. to navigation upon a navigable water-way, to effect appropriate changes to remove the hindrance. It was argued at the trial that this provision violates the Constitution because it constitutes a delegation to an executive authority of the legislative power which belongs to Congress. Rejecting this argument, the Supreme Court said (at pp. 533-4):

"But investigations by Congress as to each particular bridge alleged to constitute an unreasonable obstruction to free navigation, and direct legislation covering each case sepa­ rately, would be impracticable, in view of the vast and varied interests which require national legislation from time to time. By the statute in question Congress declared in effect that navigation should be free from unreasonable obstructions arising from bridges of insufficient height, width of span, or other defects. It stopped, however, with the declaration of a general rule, and imposed upon the Secretary of War the duty of ascertaining what particular cases come within the rule pre­ scribed by Congress, as well as the duty of enforcing the rule prescribed in such cases. In performing that duty the Secreta­ ry of War will only execute the clearly-expressed will of Congress, and will not, in any true sense, ...exert legislative... power."

And further:

"Indeed, it is not too much to say that a denial to Congress of the right, under the Constitution, to delegate the power to determine some factor of the state of things upon which the enforcement of its enactment depends, would be 'to stop the wheels of Government' and bring about con­ fusion, if not paralysis, in the conduct of the public business."

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  1. In the State courts of the United States it has been decided on many occasions that whenever a municipal council is empowered to regulate traffic and parking within its area it may provide by the bye-law in which it prescribes  the  various  arrangements  for  these  purposes that these should apply to such places and at such times as should be determined by an official or body named in the bye-law: see Borum v. Graham (17); Gould v. Western Dairy Products Inc. (18); Mecchi  v. Lyon Van and Storage Co. (19); People v. Sullivan (20); Taylor v. Roberts, (21); State ex rel. Harkov v. McCarthy (22).

In the Gould case it was said (at p. 191):

"The right of legislative bodies to delegate power to ad­ ministrative officials to determine facts in carrying out pro­ visions of legislative enactments has been upheld in many cases.... Even a casual observer of government growth and development must have observed the ever-increasing multi­ plicity and complexity of administrative  affairs-national, state and municipal-and even the occasional reader of  the law must have perceived that from necessity, if for no better grounded reason, it has become increasingly imperative that many quasi-legislative and quasi-judicial functions...are in­ trusted to departments, boards, commissions and agents... These things must be done in this way or they cannot be done at all."

To the same effect in the Mecchi case (at p. 682):

"To enforce an ordinance, a legislative body-in this case the board of supervisors-may delegate to the board or commission the right to determine a state of facts upon which an ordinance shall operate.... Adenial of such right would be 'to stop the wheels of government'".

And also, in the Taylor case (at pp. 658):

 

"It is contended, however, that vesting in 'the Chief of Police with the approval of the Mayor' the authority to reg­ ulate traffic...at any...congested portion of the city, is an unlawful delegati n of power to the Chief of Police. The power vested in the Chief of Police was an administrative and not a legislative power.

The organization and government of municipalities, particularly with regard to the regulation and control of

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traffic on streets, necessarily contemplates a certain power and discretion being vested in th police officers in carrying into effect the ordinances of the city, and if the.rules and regulations, adopted by the police under the authority vested in them by the Ordinances, are within the express general

,purpose of the ordinance...theyare not su)Jject to the criticism

1

that they are an unlawful delegation of authority."

Finally, in the Harkov case  (22),  the Supreme  Court  of  the State of Florida uphold a bye-law adopted by the Miami Municipal Council, whereby the city manager was given the authority to determine the parking areas and to erect parking meters there.

In the face of the uniform reasoning in all these authorities, I am persuaded that the rule limiting the principle of delegatus non potest delegare has its place in the legislative field and should be applied in Israel as well.

  1. By virtue of this  rule it  is  possible  to  uphold  th<. provisions of sec. 3 of the bye-laws empowering the Mayor to prescribe  "regu­ lated parking places" in those streets of the city Tel Aviv-Jaffa, which

·have previously been designated therefor by the Council itself (sec. 2), and having done so to determine whether parking thereon should be regulated by means of attendants or parking meters.

 

Firstly, the authority to solve the problem of parking vehicles moving within its boundaries, which the council has been granted  by sec. 25(1) of the Road Transport Ordinance, was phrased, as I have indicated, in very broad terms, embracing also the making of "primary regulations". The fact that the section says  that  the council  must  do this by means of bye-laws does not derogate from the wide extent of that authority.

Secondly, it is manifest from the provisions of the bye-laws that the Council's policy is to solve the problem of the existing traffic load, or of the one likely to arise, in certain of the city's streets, by regulating the parking of vehicles which happen to be there, by means of attendants or meters. It is clear that the designation of the specific places in which one or the other of the two arrangements is to be adopted in those streets requires a preliminary investigation of .the conditions bearing upon such problem; and  that  these conditions, are  likely to change at any moment. It follows that the task which the Mayor must carry out in the matter is at bottom merely one to institute an enquiry into the factual question whether the conditions in one or other place are suitable

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for the employment of one of the said parking arrangements and so to determine, in the light of the results of this enquiry, the precise time and the specific place for putting into effect the arrangement which he has selected. Indeed, the proper fulfilment by the Mayor of this task requires that he should in some degree exercise his discretion, but only  in  a rather narrow area. Although imposition of this task upon him con­ stitutes a delegation of the legislative authority of the Council and therefore some departure from the principle forbidding such delegation, the significance of vesting such power in him is only that  the Council  has set up the "machinery" to serve the purpose of executing the legisla­ tive policy which it has laid down with the object of solving the problem of parking for vehicles which move about the streets of  the city. Sec. 3 of the bye-laws merely means that the Mayor would serve as the auxiliary arm of the Council for operating  part of the primary  regulations  which it regarded as necessary  and  indispensable, so  that  the matter  should be properly and efficiently ordered.

Finally, I take into consideration the fact that  this problem  is not the only one committed to the Council  to deal  with  and  that  the area of its legislative activity comprises and extends to a number of other subjects (secs. 96 and 98 of the Municipal Corporations Ordinances); likewise, that the Council constitutes  a  body  whose  members  carry out the legislative procedures in which they engage in a parliamentary fashion. Under these circumstances,  it  would  not  be  practical  for  us to make it obligatory upon this body  to  take into its own  hands  the  task of making the continuing factual investigations, upon the result of which depends the realization of the policy which it had laid down for reg­ ulating the matter. It is therefore only right that the Council.should pos­ sess the power to be assisted in this regard by the person who serves as its xecutive arm, the Mayor  (ibid,  sec.  59  (a)).  Otherwise,  "the  wheels of (municipal) government will not be able to turn."

 

Accordingly, in my opinion, the delegation of the authority men­ tioned in sec. 3 of the bye-laws is legally supportable, and the deter­ mination of the Mayor regarding the location of regulated parking, which is the subject of our considerations, rests upon firm foundations.

  1. Was it competent for the council also to delegate to the Mayor the task of prescribing the parking fees which anyone  parking  his vehicle in such a place must pay by depositing it into the adjoining mechanical device (secs. 11 (a), 11 (c), and 11 (f) of the bye-laws)? It will be recalled that the charge filed against appellant in  the  present case is  based  upon  his  non-fulfilment  of  this  duty  to  make payment.

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After some hesitation, I have come to the conclusion that the learned judges were right in answering this question in the negative.

  1. It is superfluous to explain at this stage-in view of the definition of a regulation having legislative effect, with which we were concerned in the first part of this judgment-that the enactment in sec. 11 of the bye-laws regarding the obligation itself to pay a fee is of such a character. The same is true of the determination which the Mayor was to make regarding the scale of this fee, since the obligation would not be complete unless its amount were also determined. Thus  subsection  (a}  of  the said section provides that no one shall park a vehicle in a regulated parking place "unless he has paid a parking fee in accordance with the

" scale of fees prescribed for that parking  place  under  subsection  ( c) "; whilst under that subsection the task  of fixing  the  scale of  this fee is put upon the Mayor. The rule laid down  in  Attorney-Genera/  v. Schreiber (6), upon which appellant's counsel relied, is not  pertinent here, since it dealt with the non-payment of a fee for a building permit, the rate of which had been previously determined, and the fact that the municipality refused to accept this fee from the applicant for the permit­ this is the essence of the decision-did not  affect  his absolute  duty  to pay it before starting to build.

 

  1. The relevant provision-concerning  the  Council's  authority for prescribing the various kinds of fees, and pursuant to which it acted when enacting the provisions of sec. 11 aforesaid-is to  be found in sec. 99(1) of the Municipal Corporations Ordinance. It will be re­ called that the latter states that with regard to the matters which the Council may or is empowered to regulate or to carry into effect by , means of bye-laws, it may "provide" in such bye-laws "for the payment of any fees". Appellant's counsel emphasized the words quoted, and inferred therefrom that the terms of the power were wide enough to permit the Council to be assisted by others in fixing the scale of fees, upon the payment of which it had decided. The proof lies in the fact that when the Mandatory legislator wished a council (or some other authority) itself to define the extent of the payment which it was empower­ ed to demand, he made use of narrower expressions such as "prescribe", "fix", "levy", etc.

In my opinion, appellant's counsel cannot rely upon such a distinc­ tion. The breadth of language· which the legislator employed in sec. 99(1) of the above Ordinance may be explained by his desire to express three things in "one breath": (1) the Council may impose the obligation of paying fees and their scales; (2) it may do so with regard to matters

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the regulation of which is part of its functions; (3)  it  must incorporate its directions in these matters in the bye-laws which it enacts. Compare, by way of contrast, sec. 5(5) of the Trades and Industries (Regulation) Ordinance, which contains  a  provision  concerning  the  payment  of fees for trade permits "at the rates prescribed" in the Schedule. It is quite obvious that here the legislator used the narrow expression "prescribed" in connection with the scale of the fees alone. Nonetheless, I think

that the terms of sec. 99(1)  do  not  exclude  from  consideration  the possibility  that   the  Council  could   to  some  extent  depart  from  our                                                                                       f' basic principle (against  the delegation  of legislative  authority).  But the

answer to e question whether it may do so in the present case-and to what extent-depends upon other factors,  namely,  (a)  the character  of the fee under consideration, and (b) the extent of the need to be aided

_by others in fixing the scale.

  1. The nature of the fee. The dispositive question is, does the parking fee possess the character of a tax? This is a question which cannot easily be answered. In his Introduction to Taxation Law (p.4), Witkon J. -defines the term "fee"  as  an  obligatory  payment  payable "in consequence of some service". It seems  to  me  right  to  reconcile this definition with the term employed  in the present  matter as follows: a "parking fee" means a payment made in consequence of some privilege which a person parking his vehicle in a regulated parking place receives. The privilege consists in that he is entitled against this payment to park for a time in excess of that required for taking up or putting off passengers, or for immediate and uninterrupted loading  and  unloading  (compare the provision in sec. 5(a) of the bye-law.) In the above-cited Harkov  case (22), the American court said-according to the digest of the  decision published in 108 A.L.R. p. 1154-that

"those who enjoyed the privilege  of  parking,  rather  than the general public, paid the extra cost of providing and main­ taining the means for the enjoyment of the privilege, and the extra cost of the supervision and policing of it."

 

On the other hand, it is not to be supposed that the scale of a parking fee will be determined-even if a yardstick exists for enabling this to be done-by taking into account the monetary value of  the  privilege; "the absence of a direct quid pro quo" is "one of the indicia of a  tax in its primary sense" (Witkon, loc. cit.), Moreover, a per.son who in the course of attending to his business needs to park his vehicle in a street in which parking is regulated by means of parking meters, must do so only in a "regulated" parking place and then he has no choice

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but to pay a parking fee. Indeed, the use of different vehicles for essential needs is on the increase in this country as well, especially, in a large and busy city like Tel Aviv-Jaffa, and it cap. therefore be said that in practice if not in  theory  such a  person is not free to waive  the  benefit  which  he ·receives by utilizing the privilege (see Berinson J.'s judgment in Local Council of K'far Ata v. Ata (7) at  pp. 873-4).  It  follows  that in the payment of such a fee there also exists the element of "compulsion", which likewise constitutes a distinguishing feature of a tax.

The result is that the fee with which we are dealing is of the nature both of a "price" and a "tax", and therefore the description which Witkon J. has given t this type of payment-"something of a hybrid creature" (op. cit. p. 8)-also fits it. Nevertheless, as will subsequently appear more clearly, for the purpose of the problem  which  claims our attention, I attach greater importance to the tax element which it embraces.

 

  1. As I have indicated, the second consideration to be considered arises from the need of the Courlcil to be assisted by someone in order that such fee should be set at an appropriate level. According to sec. 1l(c), the Mayor may prescribe "different scales of fees for different regulated parking places, according to the hours of parking, the periods and types of vehicles". I infer from this provision that upon its enactment the city fathers acted on the assumption that conditions in any regulated parking place, such as the size of the place and its capacity, the traffic load and the overcrowding of cars, change or are likely to change from place to place and from time to time, as well as in the light of the type of vehicle that is parked there. They decided therefore that it would not always be expedient in practice to fix a standard fee for every place nor to classify the fees in advance in different groups. In other words, I attribute to the members of the Council the view that since they themselves are unable always to follow the development of the situation at every regulated parking place in the city, it is equally im­ possible for the Council to be saddled at all times with the task of pre­ scribing the scale of the fee to be received from drivers who park their vehicles. Hence they found the solution to the problem by delegating to the Mayor the entire function of fixing the various scales. I think that these considerations which faced them-as distinguished from the solution which they found acceptable-constitute practical and legiti­ mate considerations which even we must take into account for the purposes of our decision.
  2. How do the conclusions which  I  have reached in the preceding

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l

two paragraphs affect the question with which we are occupied? The first con lusion-that a privilege fee possesses the two elements char­ acteristic of a compulsory payment of the  nature  of  a t -requires that the Council should not rid itself of the task of determining the level of this fee. The accepted view is that the authority to levy a tax emanates from the sovereign character of the supreme legislative organ and that theoretically it alone can do so and if for this purpose it has chosen to be assisted by a subordinate law-making body, the latter must necessarily abide, even to a greater degree, by the principle of delegatus non potest delegare. The second conclusion-that one should  take into account the practical considerations which the members of the Council put to themselves as described above-requires that this body should be able to be assisted in discharging its task by its executive arm so that the matter should not prove unduly burdensome and in order that it might achieve its purpose. This conclusion therefore involves some deviation from the confines of our principle. It is essential to bridge these two conclusions and the question is how this is to be done.

 

My answer is that for this purpose two possibilities exist as to the means to be pursued by the Council. One possibility is to outline a rational basis or mode of action capable of guiding the Mayor in pre­ scribing the relevant scales of fees. Even if the employment of such a mode required prior examination and appraisal of the factual conditions in the light of which the fee scales have to be calculated, it does not matter since this may be reconciled with the qualification of our principle to which my remarks were devoted in the earlier part of my judgment. Moreover, in carrying out the task of investigation and appraisal of the facts lies the justification for following this method. On this point, the judgment of the Supreme Court of the United States in the case of Hampton v. U.S. (23) is instructive. That case involved a congressional

Law which empowered the President to increase or decrease up to 50%

the customs rates prescribed by the Law; the increased or decreased rate had to be determined by the President with reference to any imported article in an amount equal to the difference between the costs of produc­ tion of that article in a foreign "competing" country and the costs of production of a similar article in the United States. Chief Justice Taft pointed out in his judgment the factual difficulties which confronted Congress, in the light of changing conditions, and prevented it from dealing itself with the procedure for increasing or decreasing the customs rates. He said at p. 350:

"Because of the difliculty in practically determining what that difference is, Congress seems to have doubted that

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the information in its possession was such as to enable it to make the adjustment accurately, and also to have apprehen­ ed that with changing conditions the difference might vary in such a way that some readjvstments would be .necessary to give effect to the principle on which the statute proceeds."

Therefore, he continued, the solution to devise a plan and to be assisted in its operation by the executive branch occurred to Congress.

"To avoid such difficulties, Congress adopted...the method of describing with clearness what its policy and plan was and then authorizing a member of the executive branch to carry out its policy and plan and to find the changing difference from time to time and to make the adjustment necessary to conform the duties to the standard underlying that policy and plan....He was provided with a body of investigators who were to assist him in obtaining needed data and ascertaining the facts justifying readjustments."

Approving this solution, he stated at p. 353:

"If Congress shall lay down by legislative act an intel­ ligible principle to which the person or  body  authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power. If it is thought wise to vary the customs duties according to chang­ ing conditions of production at home and abroad, it may authorize the Chief Executive t<;> carry out this purpose."

Mr. Zilbiger argues that likewise in the present case the Council  laid down in subsect. ll(c) of the bye-laws principles adequate to guide the Mayor in determining the scales. This argument is inherently erroneous because  there  is  nothing  in  those  principles  which  serve as any rational basis for calculating the scales.

 

  1. The other possibility which  the Council  might  have  pursued, in my opinion, was to fix a maximum rate for the parking fee and to authorize the Mayor to vary it downwards with regard to different, regulated parking places and upon  consideration  of  the  other  factors set out in subsec. ll(c). I have not found any direct authority for  this  view, but it commends itself to me both on account of the practical reasons above referred  to, as well as because  after  all  the fee-and  here I  emphasize  its  other  aspect-also  partakes  of  being  "a   price",   due to the "benefit" derived, and does not constitute a  pure  tax.  Although the adoption of this method means vesting a discretion in the Mayor

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in respect of the level itself of the fee, he is restricted by the maximum which the Council has prescribed, and to a certain extent by the principles mentioned in subsec. 11(c). I think that in the absence of any possibility of prescribing any other  method  for  calculating  the scales,  the factor of dfectiveness justifies resort to this method.

In this connection I have given thought to the idea whether that part of the bye-laws now being considered may not be interpreted as impliedly providing that the scales which the Mayor prescribes must pass the test of reasonableness, i.e. whether this test may be regarded as a yardstick for the maximum rate at which he may fix the parking fee. But I have been convinced that it is not right to rely on such an idea, since on the one hand the Council itself i& bound to put the scales prescribed by it to the touchstone of this test; any one of a number of fees could be thought reasonable and the duty devolves upon the mem­ bers of the Council themselves to chose the amount which they regard as suitable to constitute the maximum rate of parking fee. On the other hand, resort to the yardstick of reasonableness-especially when it relates to the rate of any kind of payment,-necessitates the exercise of too wide a discretion. In other words, an attempt to validate in this manner the determination of the Mayor, under sec. 11 of the bye-laws, would result in removing the task of exercising such discretion from the shoulders of the members of the Council and transferring it to those  of the Mayor-and this cannot be.

Finally, I have borne in mind the possibility of attributing to the secondary law-maker the intention that the Mayor should calculate the scales according to the expenses involved in erecting and main­ taining the mechanical devices in the relevant places within the city. But I have rejected this possibility also, firstly, because it was not clearly established during the trial whether the collection of the parking fees was for the purpose only of covering these expenses-whether, for

 

income of the city: Shannon v. Lower Mainland Dairy Products Board

I

example,  it  does not  also serve  the purpose  of  increasing the general                                                                                                   1

 

(14).  Secondly,  it  is difficult  to  assume  that  it is  within  the range of                                                                                                                   t

practical possibility to calculate the scales on  such  an  arithmetical basis. (Consider Dalton, Public Finance, pp. 30-1, regarding the impossibility of calculating  the  price  of  the  services  obtained  from the British Post Office, or any other public enterprise, according to the expense involved in providing these services.)

It is hardly necessary to observe that in subsec. ll(c) the Council did not resort to either of the above described methods for fixing the

102

 

rates of the parking fee, nor did it determine such fees itself. (It is an interesting fact that in the two American cases I found, which turned upon the legality of regulating parking by means of parking meters, the city council itself prescribed the scale in the body of the regulation which it adopted: Birmingham v. Hood-McPherson Realty Co. (24) and Harkov (22) ). Such being the case, and in view of the principle of delegatus non potest delegare, the said provision must be regarded as invalid.

It follows that the determination of the scale by the  Mayor for the non-payment of which the appellant was prosecuted, was.of no effect, and his acquittal from the charge against him was well founded.

I must add that I have not ignored  the fact  that  the scale  which had been fixed in the present case is of such an  insignificant  amount that it is difficult  to envisage  that any citizen  would  refuse to  pay it.  In this regard the appellant's attitude is undoubtedly extraordinary. On the other hand, had we validated the method whereby that scale was prescribed, it might have opened the door wide to municipal and local councils divesting themselves  of the  responsibility resting upon  them  to give their attention to the level of the fees which  they are authorized to levy in many other spheres. Briefly, the principle that the amount involved is not relevant  is no less.valid  in constitutional law than  it is in private law.

This conclusion relieves me of the duty  to  deal  with  the  reasons of the judges below that  the fixing of the scales  was invalid  by reason of its non-publication in Reshumot pursuant to sec. 17 of the Inter­ pretation Ordinance. For myself, I think that this requirement has been sufficiently met by virtue of the provisions of subsec. 1 l(d) of the bye­ laws, since in these  provisions-which  were  published  in  Reshumot­ the public is referred to the Mayor's notice (concerning the scales pre­ scribed by him) which he was to display "upon the regulated  parking area or upon the mechanical device" (see, by way of analogy, lrgun Nehagei Moniot Sherut v. Mayor of Tel Aviv (3) at p. 102).

 

The conclusion is that the appeal should be dismissed and the judgment of the District Court affirmed.

SILBERG J. I concur,

GOITEIN J: I agree with the first part of the judgment of my learned colleague, Agranat J., and I have nothing to add to it. I regret that I do not see my way clear to agree with him as to the latter part and, with all due respect, I take issue with him thereon.

103

 

If I understand this part of his judgment correctly, my colleague is prepared to dismiss the appeal of the Tel Aviv-Jaffa  Municipality  on two grounds:

  1. The fee which a driver has to pay, if he wants to use a parking place regulated by meters, is a tax. And if this fee is really deemed to be a tax, then it is fot the whole Council to determine its amount and the Mayor has no right to prescribe it.
  2. If a bye-law of the Tel Aviv-Jaffa Municipality authorizes the Mayor to prescribe the level of the fee, the bye-law is ultra vires, the authorization being repugnant to the principle that an agent may not delegate.

 

I find it difficult to agree that the payment which a driver makes for using a certain parking space for a particular time is to be considered a tax. In his judgment my learned colleague says that this fee partakes of the quality of a tax because we do not know whether the receipts, or part thereof, which the city obtains in this way, will not be included in its general income as would be the case with any other tax.

There is not a scintilla of  evidence  before  us  to  prove  that  the use of regulated parking areas in  which  meters  have  been  installed will produce a profit for the Municipality, or·that this profit will be included in the city's budget.

 

It is clear that money is required to acquire these meters. It is equally clear that to keep them in working condition and the special supervision required of the police or municipal officials, likewise in­ volve expenditure.

I am prepared  to assume that the lion's share of the receipts from  the use of these meters was intended for their purchase and maintenance and that a small part will perhaps be left over and  diverted  into  the city's budget, but I would not agree to hold that the fee is not a payment for a definite service, only because the possibility _exists that a small percentage of the receipts will find its way to the municipality's treasury.

 

I do not think that this court has to decide that the installation of these parking meters-the purpose of which is to regulate traffic in a city in which transport problems have reached a critical stage-was designed in order to exact taxes in a round-about way; I do not see here any conspiracy between the Mayor and Council to levy taxes unlawfully.

104

 

 

 

 

 

 

 

It appears that my colleague's judgment reveals concern lest the grant of authority to the-Mayor to determine the level of the fee carries with it the danger that the citizen will be called upon to pay taxes which have not been levied upon him in accordance with law.

It may be that I am mistaken, but it seems to me-and I say this res­ pectfully-that this concern flows from the political struggle with the monarchy of past centuries, at first in England and afterwards across the Atlantic Ocean in the United States. There were times when the citizen fought for his right not to pay taxes unless his representatives in Parliament agreed to the imposition of these taxes (no taxation without representation). But the echoes of the historical past in other countries need not reach as far as Israel where, during the thirty years of the Mandate, we all paid taxes without having any right to elect our repre­ sentatives to approve the levy of any tax whatever. We received an edict from above and paid the taxes which were demanded from us. Even income tax which takes away an appreciable part of our income was imposed upon us by the High Commissioner in Council and to this very day that is the la"!' which applies in Israel. The same may be said of the Municipal Corporations Ordinance. We received this Law also from the High Commissioner in Council and after eleven years  of statehood it is still valid and subsisting, and determinative of the rights of city dwellers. It is true that the citizens elect those who will manage the affairs of the city, but it is not they who decide the levying of taxes. A veto or approval  of  the taxes  which  the representatives of the electors desire is dependent upon the will of the Minister of the Interior. Therefore, the whole theory according to which  no  taxes  are to be imposed unless they are  prescribed  by  the representatives of the people is of small value in the cities of Israel.

Moreover, if the respondent wanted to prove that a part of the meter fee is ultimately to be included in the city's budget, like other taxes, he should have produced evidence to that effect. I have not for­ gotten that we are dealing with a criminal trial in which it is for the prosecution to prove the offence, but the burden of  proof  shifted to the  respondent  the  moment  when  the  Attorney-General  produced to the court the Municipality's bye-laws which  have  been  published in Reshumot and bear the signatures of the Mayor, the acting Minister of Transport, and the Minister of the Interior. Prima facie these bye-laws are valid. This court will assume that omnia rite et solemniter acta and  if the respondent wishes to adduce facts to prove that it is not so, the burden is_upon him. It follows that in the case before us the respondent , has not endeavoured to shift the burden of proof back upon the Attorney-

105

 

General and we have no evidence at all that what is called a fee-i.e., a payment for a service and not a tax-is not really a  fee, a  payment which covers the expenses of purchasing the meters, their supervision ' and maintenance. Without evidence I am not prepared to accept as a fact that part of the receipts from the use of the meters goes to the municipal­ ity's budget.

'

I am, respectfully, in agreement with Berinson J. who in the appeal of the Local Council of Kjar Ata v. Ata Textile  Co. Ltd  (7) (at p  874), says:

"There are services which  the  Council  may  conduct on a purely business basis and  make avai}able  to residents or property owners who will use them according to their free choice, in consideration of a certain payment for each use and service, such as a local transport enterprise, a swimming pool,

a place of public entertainment, water supply which is not exclusively in the hands of the council etc."

It is my view that although the  object  of  installing  the  meters i not for the purpose of doing business but for regulating traffic, payment for use of parking space is purely a business matter and there is prima facie no difference between a swimming pool, for example, as Berinson J. remarked, and a service regulated by parking meters.

Instead of a driver roaming around the streets in his car for a quarter of an hour or more in search of a place where to park and instead of wasting petrol and thereby  foreign  currency,  he  pays a fixed  amount so that he should be permitted to use a regulated parking space in different parts of the city. I cannot therefore adopt this part of  my learned colleague's judgment which treats this fee not as a fee for a definite service but as a payment for.the benefit of the city's taxes.

Agranat J. regards as an additional indication that this is a fee of a tax character and not a price, that the  driver  is  compelled  in  some areas to use only a regulated parking place and, as is known, compulsion constitutes one of the indicia of a tax. I respectfully disagree with this view. If a driver were permitted to park his vehicle only in a regulated parking place, it is conceivable that I might agree that there is an element of compulsion, but  it  is  not  so.  There  are  numerous  parking  places in Tel Aviv-Jaffa which are not regulated parking places and if there is no sign forbidding parking in a certain place any driver may park his vehicle there (subject, of course, to prohibitions prescribed by the Transport Regul tions). In many streets, non-regulated parking places

106

 

 

 

 

 

 

are found some small distance away from a regulated parking place.

In an announcement pursuant to the Transport (Traffic Signs) Regulations, 1949, regarding the determination of classes of signs, their form and meaning (Official Gazette, 1950, no. 61, p. 505), we find (at p. 507) in class B, Directional signals-(1) Prohibitory Traffic Signs, the sign no. 2A-19, which forbids waiting and parking and sign no. 2A-20 forbidding parking; and also, in class C-Information Traffic Signs­ sign no. 1-3, for the parking of vehicles. Even though the municipality has installed parking meters and permanent parking places, there are still to be found parking places for vehicles where sign no. 1-3 is posted, and many places where signs no. 2A-19 and no. 2A-20, which prohibit parking, are absent.

It follows then that a driver is under no obligation to park  his vehicle in a regulated parking place alone but is entirely free to find for himself some other place in the city where parking is not prohibited.

In my opinion therefore the two foundations upon  which  my learned colleague based that part of his judgment which holds that subsec. 1l(c) of the bye-laws is ultra vires, because it prescribes a fee which is in fact a tax (which only the Municipality can impose), are not foundations upon which it is possible to base such a finding.

Under sec. 99(1) of the Municipal Corporations Ordinance, 1934-and the bye-laws of Tel Aviv-Jaffa concerning the stationing and parking of vehicles were adopted pursuant to this s ction-the Municipal Council may adopt such bye-laws "to enable  or  assist  it  to carry out any of.the matters it is required or empowered to do under this Ordinance or any other Ordinance or  law...and  may  by  such  bye-laws  provide for the payment of any fees or charges...and for the grant or issue of licenses or permits in connection  with  such  matters,  and  for  the fees to be paid therefor."

 

I infer from this that although the Council is under a duty to enact the bye-law and afterwards to obtain the approval of the High Com­ missioner (now the  Minister  of  the Interior). it  does not mean that  it must in the bye-law itself take upon itself the execution of those things which are to be done pursuant thereto.

 

In the case before us, if we look at it in a practical and not merely a theoretical manner, it would appear that neither the Council nor even the Mayor would be able to prescribe the appropriate fee on the basis of personal knowledge alone.

107

 

 

 

 

 

The Council, like· the Mayor, would have to refer to statistics regarding the volume of traffic in various. places in the city before deciding where to. instal parking meters. Additionally,. the Council, if it wer,e making the decision, and likewise the Mayor, if he decided, would have to know the price of the parking meters and the cost of their main­ tenance, and many other things in connection with the methods of using parking meters.

I do not imagine that al the members of the Council are required to stand a whole day or perhaps a week with notebook and pencil in hand at a particular spot in the city to record the number of cars that pass there at all the hours of the day, and having completed their work there to go on to a different spot to make a similar statistical study.

If the Coup.di were indeed required to do this, the Municipality would not instal parking meters until Doomsday. The Mayor, likewise, who has to determine the places for installing the parking meters and the fee, would not be able to carry out this work by himself but would have to obtain detailed information from experts in this matter, and on the basis of the statistics he obtained from them and upon whicµ he would have to rely, would prescribe the conditions under which a driver was to make use of the meters. It is therefore true to say that when the Council have delegated this function of designating the parking places and the fee which drivers have to pay, they do not impart any of their authority to anyone else.

The Mayor will determine the fee on the basis of the information which he receives from the experts and the Council thereby performs its function, for neither will it be able to determine the fee without such information.

This is not a delegation of authority; it is only a way of carrying  into effect that which lies within its authority.

Sec. 99 of the Municipal Corporations  Ordinance  does  not preclude the Council from taking  steps for effecting  the  arrangement by one of its members, the Mayor, and with his help.

When we take into account the difficult prQblems which arise from the increase in the number of cars in our cities, we should look favourably upon regulations whose purpose is the enforcement of order in place of chaos, and not to be over zealous in inquiring whether or not they are ultra vires or according to the letter and not the spirit of the law.

Judge McReynolds says concerning this subject in Frost and Frost

108

 

 

 

 

 

 

Trucking Co. v. Railroad Commission of the State of California (25), (at p. 466), that the States (read, cities)

"are now struggling with new and enormously difficult problems incident to the growth of automobile traffic,  and we should carefully refrain from interference unless and until there is some real, direct and material infraction of rights guaranteed by the Federal Constitution"

This was said in 1926, and  it  is even  more  true in 1960. There is no real infringement of the citizen's rights because the Mayor received permission under a bye-law to fix a price for a service to car drivers.

It seems to me that the installation of parking meters is helpful to the citizen; they do not curb any of his privileges and I therefore see no reason for regarding that section in the bye-laws which empowered the Mayor to determine the level of the fee as ultra vires.

For my part, I would allow the appeal of the Tel Aviv-Jaffa Munici­ pality.

 

Appeal dismissed. Judgment given on February 11, 1960.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

109

Berman et al. v. Minister of Interior

Case/docket number: 
HCJ 3/58
Date Decided: 
Thursday, October 30, 1958
Decision Type: 
Original
Abstract: 

The district of Nahlath Yitzhak consisting of 250 families had for very many years been part of Tel Aviv Municipality. Since 1949 a movement to sever this connection had gathered strength and in 1950 a petition to this end, signed by 353 residents, had been delivered to the Ministry of the Interior. Tel Aviv had claimed that the petitioners were not authorized to speak for all the residents and the matter was left in abeyance until 1956, when it once more became active on the delivery of a similar petition signed by 491 persons. The Minister then appointed a commission to inquire into the question, in accordance with sec. 5(1) of the Municipal Corporations Ordinance. The commission was composed of seven individuals, including a representative of the Histadrut and the General Zionists respectively. It held five meetings at which the various interests were heard but not those residents in favour of retaining the connection with Tel Aviv. Between the last two meetings, the General Zionist member had died but the Minister did not appoint a substitute and directed the remaining members to complete the inquiry, which they did in July 1957, recommending by a majority of four in favour of the separation. In October the Minister publicly announced his decision to detach the district from Tel Aviv and attach it to Givatayim. Thereupon  the opponents  of the separation drew up and delivered a petition signed by 182 persons and sought an interview with the Minister. The latter refused abruptly to change his decision, observing that he had reached it after careful examination of all the data, that the petition contained names which had appeared on the earlier petitions and that the number that had  signed these showed  a  overwhelming  majority  in  favour.  An  additional  petition  signed  by 180 other persons was then delivered, making a total of 360 in favour of the existing arrangement. In the meantime, opposition had also been voiced by the major industrial establishment in the area but had been rejected. Finally in December, the scheme was put into effect.

 

The petitioners now claimed that in issuing the proclamation bringing the scheme into effect the Minister had acted improperly because he had refused to hear those who opposed it, that the commission was improperly appointed because it was a condition precedent that the Minister should be convinced of the desirability of the proposed change, that even if properly appointed, the commission had lost its competence to act upon the death of one of its number  before completing its  task, and  that as a quasi-judicial body  the commission had offended the rules of natural justice by not hearing the other side.

 

Held:

 

 (1)        The commission was properly appointed, the documentary evidence showing that the Minister had before appointing it reached an affirmative attitude in the matter, although it would have been preferable if the Minister had made a personal statement and held himself available as a witness.

 

(2)         Notwithstanding the death of one of its members, the commission had been unaffected in view of the direction to carry on its work. Even if a new commission had been appointed, all the evidence received by its predecessor could have been received, since its function was administrative or at most quasi-judicial.

 

(3)         Although under the duty to hear the other side, the commission did not have to seek out the other side on its own initiative and in the circumstances the latter had to blame themselves if their views were not represented to the commission.

 

(4)         The juridical nature of the Minister's action was not of a non­justiciable sovereign or legislative kind. Neither was it of a quasi­judicial nature to render it subject to the rule audi alteram partem. There was no lis and no finding of fact upon which he had to make his decision. But according to a long and well-established rule of the common law, despite recent divergences therefrom, the citizen must be given a fair hearing when his person, property, status and the like were liable to be affected. In this regard, the Minister's behaviour, although motivated by good faith, was here defective. True democracy calls for diligence in eliminating the bureaucratic barriers that stand between the government and the governed. The latter must be satisfied that decisions affecting their position result from a consideration of all views and interests involved.

Voting Justices: 
Primary Author
majority opinion
Non-writer
majority opinion
Author
concurrence
Full text of the opinion: 

II'

 

 

 

 

H.C. 3/58.

 

YONA BERMAN AND OTHERS v. MINISTER OF INTERIOR

 

H.C. 9/58.

 

"IZHAR" ISRAEL OIL INDUSTRIES LTD.

V.

MINISTER OF.INTERIOR

 

In the Supreme Court sitting as the High Court of Justice

 

Silberg J., Sussman J. and Witkon J.

 

Administrative Law-Scheme to detach district  from  one  municipality and attach it to another-Validity of appointment of commission of inquiry-Effect of death of member_ of commission- Validity of proclama­ tion-Ministerial behaviour and mode of operation-Municipal Corpora­ (ions Ordinance, secs. 5(1) and 32-lnterpretation Ordinance, sec. 37.

 

The district ofNahlath Yitzhak consisting of250 families had for very many years been part of Tel Aviv Municipality. Since 1949 a movement to sever this connection had gathered strength and in 1950 a petition to this end, signed by 353 residents, had been delivered to the Ministry of the Interior. Tel Aviv had claimed that the petitioners were not authorized to speak for all the residents and the matter was left in abeyance until 1956, when it once more became active on the delivery of a similar petition signed by 491 persons. The Minister then appointed a commission to inquire into the question, in accordance with sec. 5(1) of the Municipal Corporations Ordinance. The commission was composed of seven individuals, including a representative of the Histadrut and the General Zionists respectively. It  held five meetings at which the various interests were heard but not those residents in favour of retaining the connection with Tel Aviv. Between the last two meetings, the General Zionist member had died but the Minister did not appoint a substitute and directed the remaining members to complete the inquiry, which they did in July 1957, recommending by a majority of four in favour of"the separation. In October the Minister publicly announced his decision to detach the district from Tel Aviv and attach it to Givatayim. Thereupon  the opponents  of the separation drew up and delivered a petition signed by 182 persons and sought an interview with the Minister. The latter refused abruptly to change his decision, observing tha,t he had reached it after c reful examination of all the data, that the petition contained naines which had appeared on the earlier petitions and that the number that had  signed these showed  a  overwhelming  majority  in  favour.  An  additional  petition  signed  by 180 other persons was then delivered, making a total of 360 in favour of the existing arrange­ ment. In the meantime, opposition had also been voiced by the major industrial establish­ ment in the area but had been rejected. Finally in December, the scheme was put into effect.

 

The petitioners now claimed that in issuing the proclamation bringing the scheme into effect the Minist r h·ad acted improperly because he had refused to hear those who

29

 

 

 

 

 

 

opposed it, that the commission was improperly appointed because it was a condition precedent that the Minister should be convinced of the desirability of the proposed change, that even if properly appointed, the commission had lost its competence to act upon the death of one of its number  before completing its  task, and  that as a quasi-judicial body  the commission had offended the rules of natural justice by not hearing the other side.

 

 

 

 

 

I

 

 

. I

 

'•' I

 

Held:

 

  1. The commission was properly appointed, the documentary evidence showing that the Minister had before appointing it reached an affirmative attitude in the matter, although it would have been preferable if the Minister had made a personal stat ­ ment and held himself available as a witness.
  2. Notwithstanding the death of one of its members, the commission had been unaffected in view of the direction to carry on its work. Even if a new commission had been appointed, all the evidence received by its predecessor could have been received, since its function was administrative or at most quasi-judicial.
  3. Although under the duty to hear the other side, the commission did not have to seek out the other side on its own initiative and in the circumstances the latter had to blame themselves if  their views were not represented to the commission.
  4. The juridical nature of the Minister's action was not of a non­ justiciable sovereign or legislative kind. Neither was it of a quasi­ judicial nature to render it subject to the rule audi alteram partem. Theie was no /is and no finding of fact upon which he had to make his decision. But according to a long and well-established rule of the common law, despite recent divergences therefrom, the citizen must be given a fair hearing when his person, property, status and the like were liable to be affected. In this regard, the Minister's behaviour, although motivated by good faith, was here defective. True democracy calls for diligence in eliminating the bureaucratic barriers that stand between the government and  the  governed. The latter must be satisfied that decisions affecting their position result from a consideration of all views and interests involved.

 

Palestinian cases referred to:

  1. H.C. 43/46-Adel Ibrahim El Farrah v. Chairman and members of the Electoral Committee of Khan Yunis (1946) 13 P.L.R. 336; (1946) A.L.R. Vol. 2. 640.

Israel cases referred to·:

  1. H.C. 65/51-Eri Jabotinsky and another v. Prof H. Weizmann, President of the State of Israel (1950) 4 P.D. 399;1 S.J. 75.
  2. H.C. 103/49-Yitzhak Toren v. Prime Minister (D. Ben-Gurion) and others (1950) 4 P.D. 704. .
  3. C.A. 125/53; 126/53-Income Tax Assessing Officer for Tel-Aviv District v. David Topper and Yitzhak Zuckerman (1953) 7 P.D. 786.
  4. H.C. 70/49-"Tavlin" Ltd. v. Jefinister of Rationing and Supplies and  others (1951)  5 P.D. 1613.        ·

,,                                30

 

-- ----

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  1. H.C. 1/49-Solomon Shlomo Bejerano and others v. A(inister of Police and others (1949) 2 P.D. 80.
  2. H.C. 40/50-Abraham S. Elkayam v. Director of Customs and Excise, (1950) 4 P.D. 340.
  3. H.C. 24/56-Abraham Rotstein v. Herzliya Local Council (1956) 10 P.D. 1205.

English cases referred to:

 

  1. Board of Education v. Rice [1911] A.C. 179.
  2. Local Government Board v. Arlidge [1915] A.C. 120.
  3. R. v. Electricity Commissioners. Ex parte London Electricity Joint Committee Co., (1920), Ltd., and others [1924] 1 K.B. 171.
  4. R. v. Northumberland Compen ation Appeal Tribunal. Ex parte Shaw [1951] 1 K.B.711; 1 All E.R. 268.               -
  5. Errington and others v. Minister of Health [1935] 1 K.B. 249.
  6. Buchanan v. Rucker (1807) 170E.R. 877.
  7. R. v. The Chancellor, Masters and Scholars of the University of Cambridge (1723) 93 E.R. 698.

(16) Capel v. Child (1832) 149 E.R. 235.

  1. James Bagg's Case (1615) 77 E.R. 1271.
  2. Parr v. Lancashire and Cheshire Miners' Federation (1913] 1 Ch.366.

(19)    Innes v. Wylie (1844) 174 E.R. 800.

  1. Woodv. Woodandothers(1874)L.R.9 Ex. 190.
  2. Abbot v. Sullivan and others [1952] 1 All E.R. 226; (1952) 1 K.B. 189. 1 K.B. 189.
  3. Nakkuda Ali v. M.F. De S. Jayaratne [1951] A.C. 66.
  4. R v. Metropolitan  Police Commissioner,  Ex  parte Parker [1953] 2 All E.R. 717.

Moya/  for  the petitioners  in H.C. 3/58.

Gorney for  the  petitioner in H.C. 9/58.

Kwart and Ter/o, Deputy S te Attorneys, for the respondent.

 

SILBERG J. On January 16, 1958, the following two notices were officially published on the authority of the respondent (Collection of Regulations, 763)

  1. Proclamation of Tel-Aviv-Jaffa (Change in municipal boundaries) (Amendment), 1958,

 

  1. Local Councils (A) (Amendment No. 6) Order, 1958r

These were made on December 25, 1957, and it appears from the

31

 

 
 

 

 

 

 

 

 

Land Registers, showing additions and withdrawals, that the district of Nahlath Yitzhak was thereby removed from the municipal area of Tel-Aviv anµ annexed to the Local Council of Givatayim. Clearly if the proclamation of removal were set aside, the order of annexation will ipso facto become void, since a district cannot be under the control of two authorities or an integral part of two distinct municipal areas. On the other hand, if the relief sought were not granted and the proclam3:­ tion of removal not set aside, counsel for the applicants have stated before us that they will not appeal to set aside the order of annexation to Givatayim, because their clients are not interested in restoring the independent existence possessed by their district up to the end of March 1948. Thus, notwithstanding the sharp criticism levelled by the appli­ cants' counsel against the order of annexation in point of law, the only question before us concerns the validity of the proclamation of removal.

There is a single question but the  arguments  for  and  against  put by counsel for the parties are numerous. I do not say this disparagingly, for the question is indeed difficult, going to the very roots of Admin­ istrative law. Its solution is likely to affect, directly or indirectly, many important aspects of the relationship and chain of authority between the Government and the citizen.

  1. The statutory provisions governing the proclamation we are dealing with are found in sec. 5(1) of the Municipal Corporations Ordinance and it is prop r that these should first be considered in order to find the means to sift the grain from the chaff, to put things in their legal focus and enable us to find our way through the mas's of detail which has accumulated dtlring the course of the hearing. If we do not follow this ' course, the confusion of facts will tend to conceal from us precisely what is relevant. That section is in the following terms:

"If for any reason  it  should  appear  to  the  Minister  of the Interior t t by reason of the wishes _of the majority of the townsmen or otherwise, the area of  any  municipal  corpora­ tion set out in the first schedule to this Ordinance...should be altered, extended or diminished, he may  order  an  enquiry  to be made concerning such area, regard being had to any undertaking or development which is being carried out by the municipal corporation, by a commission  upon  which  there shall be at least one member who is not an official of the Government of Israel,  and  after  considering  the  report  of such commission may, at his  discretion,  by  proclamation, alter, extend or diminish such area."

32

 

 

 
 

 

 

 

 

 

 

The effect is that the Minister is not bound to comply with the request of those who seek to reduce the area of a municipality-in our case, to reduce the area of Tel-Aviv by cutting off the district of Nahlath Yitzhak-but he may reject it summarily without giving it any con­ sideration whatsoever. If for any reason, however, he should feel that prima facie it is desirable to comply with the request, he cannot reserve the matter to himself or act of his own accord but must appoint a com­ mission of inquiry of a certain composition to inquire into the matter, regard being had to any undertaking  etc,, and  then consider  the report of such commission. When the report of the commission has been submitted to the Minister, he is again free to decide, and he may reduce the municipal area although the  commission  had  recommended  that this should  not  be done. In  brief,  he  may  at  any  time  refuse to grant a request to reduce an area and may equally grant the request but only after the commission has considered the matter and arrived at a decision either way.

The provisions of this section are prima facie very strange. A negative decision or recommendation of the commission clears the way for the Minister and permits him to reach a positive decision contrary to the recommendation of the commission. Nevertheless, there is much logic in this arrangement, which it is not difficult to grasp. The legislature

does not permit the Minister to enlarge or reduce a municipal area, although it appears to him to be desirable, unless a particular public

commission has first carefully examined the different aspects of the problem and has submitted to him  a  report  thereon:  It  is  presumed that the Minister will reflect attentively upon the iews expressed by the members of the commision, including those of the non-official member who is quite independent and not to be suspected ·at all of any inclination to support the "preliminary" wishes of the Minister, and  that  having done so he will have a wider and less personal picture of the question involved, that he will be better informed and better equipped to exercise the right of decision vested in him by the legislature, even if ultimately, and as a result of the arguments on both sides of the case, he should decide contrary to the opinion of the commission. He would at least then know why he differs and what are the implications or the complications likely to follow from his decision.

  1. Against this background of the law, let us proceed to examine the arguments and counter-arguments of counsel for the parties, after a concise and cohesive presentation of the relevant facts adduced before us, which are as_ follows:
    1. The question of the severance of the district ofNahlath Yitzhak-

33

 

 

 

 

 

today a district of 250 families consisting of about 1000 persons-has for some years been in dispute among the residents. We do not know precisely when this dispute among the different factions of the population first began, but it should be noted at once that it was not inspired by political propaganda or partisanship. There are enthusiastic advocates and keen opponents of the separation in the ranks of all the big parties, and only local or even quite personal interests demarcate the two camps. Many instances of "desertion" from one camp to the other have also occurred-the instance of the first petitioner in case No. 3/58 is one of them-and of "friend  turned foe" or vice versa, as the result of some  or other consideration.

Since the middle of 1949 the chief spokesmen who have favoured the idea of separation and have gained adherents, both inside and outside the istrict, were members of the committee of the independent district before it was attached to Tel Aviv, and in their dealings with the municipal authorities and others they have endeavoured, and often succeeded, to create the impression that they represent the views and desires of all the inhabitants of the neighbourhood. On March 19, 1950, the Ministry of the Interior received a letter from them, to which was attached a petition signed by 353 residents asking for the district to be taken out of the jurisdiction of the Municipality of Tel Aviv. The central theme of their grievances against the Municipality of Tel Aviv was, after the manner of the Israelites in Egypt, "Services are not provided for your humble petitioners but taxes we are asked to pay." The Municipality denied all these allegations, announced that no one except it elf was authorised to speak for the residents, and the matter was left in abeyance for a period of four years.

 

  1. The question of separation again arose in 1956. At the end of June of that year, the members of the Committee above-mentioned dispatched a letter to the Minister of the Interior, attaching a petition signed by 491 persons, in which the demand was renewed to be separated from the Tel Aviv Municipality and to be brought under th aegis of the local council of Givatayim.
  2. Consequent upon this petition, the  Minister  of  the  Interior came to the conclusion that "the residents of Nahlath Yitzhak",  that is, all or the overwhelming majority, demand separation from the Munici­ pality of Tel Aviv (cf.  the first  paragraph  of  Government  Exhibit  22 in case No. 3/58) and he decided to appoint a commission of inquiry according to sec. 5(1) of the Municipal Corporation Ordinance. A com­ mission consisting of seven members was accordingly appointed by him

34

 

on January 22, 1957, which was given the task of "conductiQ.g an inquiry concerning the said area", that is, the area of the Municipality of Tel Aviv. The Minister would have fully discharged his duty  under  the law  had he appointed only one member who was not a government  official, but he went beyond the minimum requirement of the law and appointed two such members, a member of the Knesset representing the General Zionists, the late Mr.  Hayim  Ariav  and  a  member  of  the  secretariat of the Municipal Division of the Histradut, Mr. D.  Tabachnik,  the reason being-as the Director of the Ministry of the Interior, Mr. Shevo, explained to us  in  evidence-that  the  Minister  wished  to  associate with the commission the representatives of the two principal sections of the country's population, namely, the non-Labour and the Labour elements. The appointment of this commission was not published in the Official Gazette, and indeed the appointment of commissions of inquiry of this kind does not require public announcement by virtue of the provisions of sec. 132 of the Municipal Corporations Ordinance.

  1. The commission held five meetings, three of which were devoted to he ring witnesses on February 28, March 21 and April 14, all in 1957. The witnesses who testified included for the advocates of separation-the members of the committee above referred to, and for the opponents­ the Mayor of Tel Aviv, Mr. Hayim Levanon, and the Municipal Engi­ neer, Mr. Amiaz. Two additional meetings, devoted to discussions in camera and summing up, took place c;,n June 7 and July 15, both in 1957. Between the last two meetings, Mr. Ariav, one of the two non-government members of the commission, passed away. The Minister did not appoint a substitute for the deceased but instructed the remaining members themselves to complete the work of the commission. The commission did as it was directed and on July 25, 1957 signed its report and delivered it to the office of the Minister. Three different proposals were voted upon by the _members of the commission, but a majority of four votes was cast for the P.roposal "to separate immediately the district ofNahlath Yitzhak from Tel Aviv", and it was in this form that the recommendation of the commission was adopted and signed as one body by all surviving members.
  2. At this point I shall interrupt for a moment the recital of the facts and consider the arguments urged by counsel for the petitioners_ with regard to the appointment of the commission and its method of inquiry. Certiorari, it is true; has not been claimed agains the commission, but I do not regard this a defect, for if indeed the arguments of counsel for the petitioners are sound, then the report of the commission, which is a condition precedent for the Minister's... decision, is a nullity. The pro-

35

 

-- ---

 

 

 

 

clamation of separation would ipso facto have no legal basis, and this court would be able, and even under a duty,.to set it aside.

 

  1. The first in this group of arguments, first in point of internal order, is the argument advanced by .Mr.  Gorney,  representing  the  petitioner in case No. 9/58. The opening words of sec.5(1) are: "If  for any  reason  it should appear to the Minister of the Interior that...the area of any municipal corporation..."should be altered, extended or diminished etc." This means that as a condition precedent, and the only one, to the very appointment of the commission the Minister must be positively con­ vinced, and in the present case there is no evidence that this essential condition was satisfied, since the Minister himself did not give evidence in court and Mr. Shevo who testified for him expressly stated that he himself did not know the reason for the appointment of the commission, because he was not at that time the ector of the M nistry of the Inte_rior.

This argument is not valid, but in rejecting it I wish to observe that in a case where the personal action  of  the Minister  is  being attacked and his subjective motives are questioned and scrutinized; it is  proper and prudent for the Minister to make a personal statement and hold himself available for examination in the witness box, because this task cannot always be accomplished properly by others and  it  is likely  to tum out to his disadvantage when the court examines the propriety of his action. However, the answer to the foregoing argument is that at the beginning of the letter appointing the commission occur the words: "Whereas it appears to me that there is need to change the area of jurisdiction  of Tel Aviv-Jaffa, etc.",  and  we have no grounds  at  all for

doubting the correctness of the recital despite the absence of oral evidence to this effect. The appointment of the commission is itself abundant proof that the Minister, indeed, entertained at that time an affirmative

attitude to the petition for separation, since under the law he might have rejected it summarily, as we saw above, without devoting ap.y thought whatever to it. Why then did he see fit to go to all this trouble? One may complain of the Minister-and more·will be said about this later-that at a certain stage he was excessively zealous for separation, but under no circumstances can it be said that at the time of the com­ mission's appointment he was not personally inclined, even if only tentatively, to granting the request for separation. As I exp_lained pre­ viously (para. 2), this is just the proper test for the condition laid down at the beginning of sec. 5(1).

  1. .A second argument of a formal kind, one common to both counsel, was that even if the commission was originally competent, it became

36

 

                                                          

 

 

 

 

disqualified upon the death  of Mr.  Ariav. The respondents'  answer to this was that the provisions of sec. 37 of the Interpretation Ordinance prescribe that when an act requires to be done by a group of persons exceeding two, it can be done by a majority of them, and he relied upon the decision of the Supreme Court during the Mandate in El Farrah v. Electoral Committee of Khan Yunis (1),

 

a

This answer does not recommend itself to me. The majority of the members of a body are called a "majority" when the members of the mi ority still exist and not when they have ceased to exist. Upon the death of Mr. Ariav, the remaining members become not majority of he commission but an incomplete truncated commission, and a truncated commission cannot carry out the function with which the entire com­ mission has been charged,-particularly in tp.e present instance in which a special role of representing the civic elements was assigned to the de­ ceased member. Accordingly no parallel and analogy can be drawn from the decision of the Supreme Court in the case cited.

 

But the argument itself also does not appeal to me, and the answer to it is as follows. Although the Minister did not reappoint the com­ mission upon Mr. Ariav's death, he did, as will be recalled, direct that they should themselves complete its-work. Is there any difference between the two? I think not. The commission of inquiry was not on any view a purely judicial body. It was either merely administrative or quasi-judicial, and as such authorized in the absence of countervailing provisions of law to draw its information from any source whatsoever: Board of Education v. Rice (9). The les as ta hearsay or oral evidence by witnesses are certainly not applicable to bodies sucli·as these, cf. Local Government Board v. Arlidge (10). It follows that even if the commission had been reappointed, consisting of_the six members after the death of the seventh, it would have been permitted to utilize all the evidence previously produced to it and to complete, as it did, its investigations. What the members of the commission personally heard is certainly not inferior to hearsay evidence. If that is so, what is the difference whether the Minist r wrote "I appoint you to be by yourselves the members of the commission" or "I order you to omplete by yourselves.the work of the commission". 'J;'he .actual task is identical in both instances. t seems to me that there·•is no practical or substantive difference between the two versions, at least not so as to make it obligatory for us, as a High Court of Justice;to set aside the report of the commission on that account.

  1. The third material submission of the petitioners' counsel differs in its character. The argument is that the commission which "in their

37

 

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view was a quasi-judicial body did not conduct itself according to the rules that apply to bodies  of  this kind.  Quasi-judicial  bodies must, as is known, observe the "principles of natural justice", one of which is audi alteram partem, the duty "to hear the other side". Who was "the other side" in the present case? Obviously not the Municipality and its representatives who reside in Tel Aviv, but those immediately affected, the people of Nahlath Yitzhak, who were personally involved and opposed the separation of the district. The observations of the latter never reached the ears of the commission because their leaders and

·· spokesmen were not invited to appear before it. The respondents' main reply to this was to deny the basic premise; the character of the com­ mission was not quasi-judicial but only administrative, because there can be either judicial nor quasi-judicial proceedings where there is no "lis" between parties with conflicting interests. The rebuttal of the petitioners' counsel was that the lack of a "lis" does not in the least negative the quasi-judicial character of the investigation body as long as conflicting interests exist for it to decide upon.

 

This is not the place to enter upon an elucidation of this interesting question-this will be done at a later stage of this judgment (para. 10, 11)

-because theargument of the petitioners' counsel  ultimately  fails upon the facts, even if its juridical premises are acceptable. The rule of audi alteram partem originates, as already intimated, in the principles of natural justice, and therefore the test of its application is also that of justice. The commission was under a duty to hear the other side, the opponents of separation, but it was under no duty to investigate and inquire on its own initiative where the centre of this other side rested and whether it had supporters outside municipal circles as well. The rnembers of the committee in favour of separation,  who  succeeded  in  creating the impression that they exclusively were the representatives of the district, gave evidence before the commission. If this impression was deceptive the opponents of separation may lay their grievances at the door of the committee and not the commission. Perhaps, they may even blame themselves for not  being  skilful  enough  in  "catching  the eye" of the members of the commission. On behalf of the petitioners it has been contended before us that they and their followers knew nothing about the existence of the commission, that its appointment was not published in the official Gazette-an omission which indeed does not contravene  sec.  132   of   the   Municipal   Corporations   Ordinance­ and that they had no other information except for the  press  reports which appeared after the commission had completed its investigations (after the third meeting of April 14, 1957, referred to in para. 3(d) above).

38

 

 

 

 

 

 

I find this difficult to believe, since the matter concerned a small district, the entire population of which does not exceed one thousand souls. But, even if it be really so, then just as they were unaware of the commission's existence, the commission likewise did not know of their existence, for these circumstances are mutually dependent. Therefore, I take the view­ not without hesitation-that there has been no infringement by the commission of the principles of justice.

  1. At this point I return to the facts. I  will continue  from  the point where I stopped at the beginning of para. 4, and will describe the events that occurred after the report was submitted in order to examine, in the light of such facts, the validity of the final act of the Minister in proclaiming the separation. These facts are:
    1. On October 2, 1957, the spokesman of the Ministry of the Interior announced to the press the Minister's decision to annex Nahlath Yitzhak to Givatayim. The opponents of separation now began to organize themselves, their active members began to collect signatures in public and on the 18th of November, 1957, a petition signed by 182 per­ sons voicing opposition to the separation was sent to the Ministry' of the Interior. In an accompanying letter, the Minister was  requested  to receive representatives of the signatories in interview for the purpose of explaining the reasons for the opposition. The Minister did not reply to this and on November 24, 1957, the director of his office sent on his behalf a long letter addressed to Mr. Berman, the husband of the first petitioner in case No. 3/58, stating that "In the opinion of the Minister this form (i.e., the signatures of the petitioners) does riot prove  the justice of the request"; tllat several names appear both on the list of those who support separation as well as on the list of its opponents; and that "the decision which the Minister reached after most careful examination of all the data was based on the facts themselves."

The letter added that "the list which was then submitted by the committee of the district [this means quite obviously the petition bearing 491 signatures of June 21, 1957, referred to in the next preceding para­ graph of the letter] was signed by 90  per  cent  of  the  residents of the place."These remarks cannot be understood unless the adult residents of the pl ce are intended to be referred to, since it is a reasonable assump­ tion that school children are not asked to sign petitions, and that these adults-a further assumption based apparently on knowledge of local conditions-constitute somewhat more than half  of the 1000 persons of the district, let us say approximately 550.

  1. In that brief interval between November 18 and November24

39

 

 

 

 

 

of that year, another parallel exchange of  letters  took  place  between the Minister petsonally and Mr. Moyal-Mr. Moyal requested  the Minister on November 21 to postpone publication of the decision of separation for a short period, so that he might in the meantime have a personal interview with the Minister. In return he received a short sharp Feply from the Minister dated November 2, in the following terms:

"Mr. A. Sh. Moyal, Advocate, Tel Aviv

Sderot Rothschild 27 Dear Sir,

I do not see what inttirest a lawyer can possibly have in this matter, unless you appear as an applicant in the High Court of Justice; but even then you must address yourself not to me hut to the judiciary.

Yours respectfully,

Y. Bar-Yehuda

Minister of the Interi<;>r"

  1. On December 12, 1957, a second petition was lodged with the Ministry of the Interior, signed by 180 persons, requesting that the district be not separated. Mr. Shevo agreed that these signatures  were not identical with those on the first petition of the opponents, and that  the number of the petitioners opposing the separation was 360. Ifwe here employ the same rules of computation and reasoning which we applied earlier to the petition of those  who  supported  separation,  the  result will be that in the interval between June 1956 and November-December

1957, there was a substantial"desertion"from the camp of the supporters of separation to that of its opponents, and that the number of adults among the latter now stood at about two-thirds of the total number of adults in the district (approximately 360/550),  unless  there has beeh

wholesale forgery of the signatures on the opponents' petition, since no one would contend that in so short a space of time so many had reached adult age in so small a district.

  1. The Yitzhak Company, petitioners in case No. 9/58, also opposed separation. They wired the Minister on September  24, 1957, that "the plan for annexation to Givatayim will seriously affect the company's property and endanger its future development", and urgently requested a stay of the decision and an interview for its representatives, adding that a special memorandum would  be forwarded  by  it  withjn the next few days. To this it received a reply dated September 30, 1957, from the Minister's secretary to the effect that "when the memorandum

40

 

 

 

 

is received, it will be considered" and that the Minister saw no need for a meeting since officers of the company had already spoken to the Director-General on the matter. Only two days elapsed and on the 2nd of October the press announcement referred to above was made.

  1. On the 25th day of December, 1957, i.e. more than a month after the beginning of the nµmerous representations to him on behalf of the opponents of separation, the Minister put h,is scheme into effect and gave his final official seal of approval to his decision by signing the proclamation of separation.

On the basis of these facts counsel for the petitioners submit that the action of the Minister was improper. He had not heard the "other side" in a manner consonant  with one reaching a quasi-judicial decision;  he did not even wish to listen to the opponents' argument  but assume a rigid position not open to appeal even before his final decision, the signing of the above-mentioned proclamation; and conduct such as this was defective and rendered the proclamation itself invalid.

  1. Here again arises the question of the "lis" which we touched upon in passing in para. 7 above, but the wider question behind it is: What is the juridical nature of the Minister's action? It is certainly not purely judicial, but apart from this what is it? Quasi-judicial (according to counsel for the petitioners) or merely administrative (according to counsel for the respondent), or is it perhaps a sovereign governmental act with which the courts are forbidden to deal, not justiciable, as counsel for the respondent submitted in the alternative.

We have rejected summarily and forcefully the last alternative  of the sovereign governmental character of the act. The distinction between the present case and Jabotinsky v. The President (1) is clear to everyone and does not require amplification. Nor do words need to be wasted on another argument feebly advanced by counsel for the respondent, that the Minister acted in this instance in the capacity of a legislator, as it were, and that his act was  a  legislative  act.  There  remains  therefore  only the choice between the two other views, merely administrative or quasi- judicial.                                     ·

 

  1. What are the features of a quasi-judicial act and how is it dis­ tinguishable from an administrative act? The answer is that it is not easy to make things out in this twilight zone of the law. No one has as yet succeeded in defining with decisive or even lesser precision the meaning of the prefix "quasi" (cf., Toren v. The Prime Minister (3); The Assessing Officer v. Topper (4); Professor Klinghoffer, Administrative Law,

41

 

- - :::...:;::..--=-=

 

 

 

 

 

.

p. 94). There is the old story of the quasi-judge who makes quasi-orders in the course of a quasi-trial heard by him. It has even been suggested that the expression "quasi" be translated by the mere phrase "not exactly" (Committee on Ministers' Powers Report 1932, at p. 73). Indeed, one gets the impression that as the result of the lack of clear definition, the courts not infrequently behave like the marksman who draws the target rings round die point of impact after the shot has been fired. I mean that the adjective "quasi-judicial", which constitutes a condition precedent for setting aside an act for violating the principles of natural justi e, is attached by the court after it has finally recognised that for reasons of justice the act should be set aside. Actually there is no great harm in this because ultimately the test is one of justice. But the question remains, is the existence of the distinction generally justified

 

or has the term "quasi-judicial",which was never charged with much con­                                                                                             •

tent, meanwhile turned into one completly devoid of content? Should we, perhaps, discard the nuances of the entire distinction? I think not. The epithet is both necessary and dispensible. Necessary-to the extent that the strictures against the act impeached is that it violates the well­ known  principle  of justice: "Let the other side also  be  heard",  with

emphasis on "the other". It is dispensible because it is immaterial when

J

·I                          the  violation  in question  concerns  other  rules of justice,  less well defined

 

I

I•                                                               but no less important, the duty to observe which ex  debito  justitiae rests

 

'1                                                               upon all state authorities in their various branches. Applied to the  matter

 

I

!                                               before  us, the  party  pleading  that the  Minister  did  not hear "the other

 

side" must first convince us that there were indeed two contending sides; failing this, there is no "other side". But ir"the plea is, and it must be proved, that the Minister struck at the status of some group without giving it every opportunity to defend and try "to avert the evil decree", then the question whether his act was quasi-judicial or merely admini­ strative loses all practical importance, because the duty to give the party which will be adversely affected an opportunity to defend itself before being attacked is-as we shall see subsequently-a duty imposeq upon every government or other authority, judicial, quasi-judicial or merely

administrative.                                                                                            'I

f

  1. Let me explain. The English remedy of certiorari is an ancient one and its origins lie in the known attempt of the Royal court-the King's Bench-to constitute itself the patron and master of all the lower courts. At first, this court would issue an order-later a writ-only to such lower courts as were Courts of Record, but subsequently it extended its sway over lower courts which were not of this kind and finally over government or local administrative bodies which are not judicial institutions.

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(See Atkin L.J. in R. v. Electricity Commissioners (11) and Goddard

L.C.J. in R. v. Northumberland (12); cf. H.W.R. Wade, The Twilight of Natural Justice, 67 L.Q.R., 106)

Since this legal device has from its inception been employed for the supervision of judges by judges, it is in the nature of things that justifica­ tion for extending its authority was sought and found in the fact that the acts of administrative bodies also possess something of a judicial quality. Thus there emerged the concept "quasi-judicial" (or "almost judicial" or "not exactly judicial"), which we stumble across so often in the long stretches of English jurisprudence. Still the question remained: How far must the act of an administrative body be judicial in order to merit the adjective "quasi-judicial" and be amenable to interference by the High Court? There is after all something "judicial" in every act. The judges have therefore gradually elaborated the concept, and after all manner of tests one idea has crystallized, which can be put in the form of the following formula. A quasi-judicial administrative act is one required for a preliminary finding of fact or law, the decision on which-the mandatory or constitutive order-is a "function"  of  that finding,  that is to say, depends upon the correytne s of the finding. Where this condi­ tion exists, the administrative body in formulating its finding must act almost like a judicial tribunal and observe the rule of audiatur et altera pars, "let the other side also be heard."

We have said that it must act almost like a judicial tribunal, but not exactly like one, because there is still a difference between the two authorities. The "almost" expresses itself in the fact that in the absence of exprass provisions in the law the hearing does not actually need to be by way of taking oral evidence with cross examination and re-examina­ tion and all the other incidents which accompany court proceedings. It is generally sufficient that the administrative body should, before making its decision, give each of the "litigating" parties present a reasonable opportunity to adduce evidence or make submissions in support of his case, or to refute the other side. Thus in the leading case, Board of Education v. Rice (9), Lord Lorebum L.C. said (at p. 182):

"Comparatively recent statutes have extended, if they have not originated, the practice of imposing upon depart­ ments or officers of State the duty of deciding or determining questions of various kinds. In the present instance, asin many others, what comes for determination is sometimes a matter to be settled by discretion, involving no law. It will, I suppose, usually be of an administrative kind, but sometimes it will

43

 

unions, clubs, societies and associations have been invalidated by English judges over a period of more than three hundred years, because such dismissals, deprivations and expulsions' were made without afford­ ing the person affected an opportunity to defend himself before actually talcing the adverse action. Authorities for this, in the order of the above­ mentioned topics, are:

Capel v. Child (16); Bagg's Case (17); R. v. The Chancellor etc. of the University of Cambridge (15); Parr v. Lancashire and Cheshire Miners' Federation (18); Innes v. Wylie (19); Wood v. Wood (20); Abbot v. Sullivan (21).

It is beyond the scope of this judgment  to  recite in detail the facts of all these cases. I wish merely to emphasize  that the invalidation  by the court of these dismissals and expulsions, in the vast majority of instances, was not effected against the background of the threefold concept:  judicial,  quasi-judicial  and  merely  administrative.  From  the

 

'1

'I                                                                      language  used  and  the spirit informing  these judgments,  it  is manifest

 

that the judges regarded this obligation of hearing the  person adversely to be affected before he is actually so affected as an obligation imposed upon aU who are empowered by virtue of office to make decisions, whatever their character and position in the above triangle. The manner in  which  the defect  in  the decision  made in violation  of  this principle

is formally cloaked is of no importance; for want of another, it is some­ times cloaked in the very ample mantle of "excess of authority" or "ultra vires". Because of the injustice involved, the official exercising power

is not "authorized" to strike at anyone without first  hearing him, since the legislature obviously did not intend to confer upon him such power. This premise operates even in  respect of the private "legislator", such as

- the contituent body of an association or society which settles its own constitution.

There is some artificiality about this explication but it seems that there is no alternative, on account of the traditional restriction upon the grounds for which perogative writs are available.

The combined effect of it all is that, according to the rule adhered to by the common law for some hundreds of years, an administrative body-even one that is purely administrative (not quasi-judicial)-will not be permitted to attack the citizen in his person, property, occupation, status and the like, unless he is given a reasonable opportunity to be heard in defence against the contemplated act. The scope of the duty and the form of the opportunity will, of course, depend-upon the con­ crete circumstances of any given matter.

46

 

 

 

 

 

  1. I am not oblivious of the "other side of the coin",  namely, the fact that in very recent years there have been two English decisions which diverge considerably from the  above  principle,  but  it  seems  to  me that precisely because of the wide divergence  this is only a,temporary and passing phase and when  the  occasion  arises  the courts will return to their traditional line. I have here in mind two cases, Nakkuda Ali (12), and Ex parte Parker (23) which were decided in 1950 and 1953 respec­ tively.

These, we know, have been the target of very sharp criticism, which it will not be easy to meet in the future. (See H.W.R. Wade, The Twilight of Natural Justice, 67 L.Q.R. 103; Gordon, The Cab-Driver's Li­ cense, 70 L.Q.R. 203.)

These decisions which have relieved the authorities from the restraint of review by certiorari or from the duty of affording a hearing to the person affected by official action, are in truth based upon notions which are very difficult to "digest".

For example, there is the startling proposition that when the controller in Ceylon cancels a licence to  trade in  textiles  because he is of the opinion that  the licensee is unfit, he is not deciding any question  at all but merely withdrawing a privilege previously granted by him (Nakkuda Ali (22) at p. 78). Is not the fact whether a person is fit or  not a question to be decided and is the grant of a licence to engage in a lawful business  merely a privilege?   '

,.,,..

Or again, a driying licence is only a permission, and if a person is given permission to do something, it is natural that he who gives the permission can also withdraw it (Ex parte Parker (23) per Lord Goddard, at p. 1154).

Or further, the Commissioner of Police when he cancels a driving licence acts as a "disciplinary authority", and when the  authority exercises disciplinary powers "it is mc;,st undesirable, in  my opinion, that he should be fettered by threats [!] of orders of certiorari and so forth" (ibid. at p. 1155).

These ideas are certainly foreign to the spirit of Israel case law. It has been said by this court: "It is a cardinal rule that every person possesses the natural right to engage in any work or occupation which he chooses, as long as engaging in this work or occupation is not pro­ hibited by law" ( Bejerano v. Minister of Police (6)). As for pursuits which require a special licence, it has been stated elsewhere: "In the absence df a statutory duty to renew the licence, the Director of Customs

47

 

'

 

 

 

may not refuse its renewal without good cause" ( Elkayam v. Director of Customs (7); and see Rotstein v. Local Council of Herzliya (8) where, in my understanding, the emphasis was not particularly on the quasi­ judicial character of the decision). We do not therefore have here a matter of a "privilege" as in the Nakkuda (22) case, or of the "the Commissioner giveth and the Commissioner taketh away" as stated in the Parker case (23). Accordingly I am of the opinion that these recent decisions notwithstanding we must continue to give effect to the long­ established principles which have been enshrined for centuries in English justice.

 

l

Briefly to sum up, I think that we must not retreat from the ancient and deeply-rooted rule that an administrative body may not strike at the citizen by virtue of any given order unless he is first afforded a

 

 

reasonable opportunity to be heard. This duty clearly does not apply

 

''I

 

to legislative acts of a sovereign character in the true meaning of this

term.

.

It is very possible, although I am not prepared to be dogmatic

about it, that today, since the enactment of the Courts Law 1957, this rule can be derived directly from sec. 7(a) of this Law, without relying at a]l upon the English authorities entioned.

  1. Having reached this point, let us proceed to examine in the light of the rule the validity of the Minister's mode of action.

 

Without doubt a very important change, for better or for worse,

 

from Tel Aviv and attached to Givatayim; they ceased to be shielded by the Tel Aviv Municipality and came under the aegis of another council.

occurred in the status of the residents of the district when it was detached I

 

Many  welcomed  the change  and even endeavoured  to bring  it about,                                                                                             l

 

 

 

·

i !

 

'

 

 

 

 

 

 

 

 

 

 

 

' I  ,,

''

 

whilst others did not find it so acceptable and resisted it. It is not for us to inquire which of these were right from an objective standpoint, since we are not the guardians of the residents  of Nahlath  Yitzhak. What  is of decisive importance for the needs of this case is the subjective point of view of the residents themselves. A new master was appointed or was about to be appointed over them, whom the opponents of separa­ tion aid not desire. Because he was not desired they were truly affected, affected in their status, even if someone else, a Minister or judge, might think that there was nothing at all in clinging to Tel Aviv "citizenship".

T-he question then is whether the Mini_ster proceeded as one should

who is about to affect the status of the citizen. I think not. After becoming             •

fully aware of the existence of the opponents, the prospective victims,

48

 

 

       
   
 

 

 

 

 

 

 

i.e. at least from October 18, 1957, not only did he not invite them to state their case (which perhaps he was under no duty to do) but expressly opposed their being heard, even after they had literally knocked at the doors of his office (see the facts stated in paras. 8(b) and (e) above). This active resistance is especially apparent from the letter of November 22, 1957, cited in para. 8(c) above, in which the Minister replied to Mr. Moyal who had sought to see him about the decision to detach the district:

"I do not see what interest a lawyer can possibly have in this matter, unless you appear as an applicant in the High Court of Justice; but even then you must address yourself not to me but to the judiciary."

This letter is difficult to understand. Why all the sound and fury? Who should occupy himself with a matter such as this if not a lawyer? Would it have been more desirable or more practical had all these hundreds of petitioners personally besieged the Minister? Both the content and style of the letter testify that for more than a month before putting into operation the final act, the Minister's mind was already completely closed to any explanation, factual or legal, by the opponents of separation and regarded-if one may say so-as a heresy to which one is forbidden even to hearken. Only from such an a priori approach is it at all possible to  understand-but  not to  justify-the  forceful  refusal of the Minister to hear the arguments of the opponents of separatioI?,,

Here I wish to emphasize particularly that I  am far  from  saying that the Minister had any personal bias in this matter or showed any partiality towards the advocates of separation.  I  assume  and  believe that his intentions were pure, but this fact changes  nothing.  In  the report of the Committee on Ministers' Powers Report, 1932, referred  to in para. 10 above, there is a very fine passage which, while it relates directly to judicial (or quasi;-judicial) acts, is applicable with some modification to other acts as well, because it expresses a·notion based upon profound general psychological insight:

"Indeed we think it is clear that bias from strong and sincere conviction as to public policy may operate as a more serious disqualification than pecuniary interest. No honest man acting in a judicial capacity allows himself to be in­ fluenced by pecuniary interest: if anything, the danger is likely to be that through fear of yielding to motives of self interest he may unconsciously do an injustice to the party with which his pecuniary interest may appear to others to identify him. But the bias to which a public-spirited man is subjected if he

49

 

 
 

 

 

 

 

 

adjudicates in any case in which he is interested on public grounds is more subtle and less easy for him to detect and resist" (at p. 78).

That is to say, even bias as such out of sincere and proper views is still bias, even more dangerous because more common, as the authors of the above Report recognized and noted. Anyone empowered to make "affective" decisions must be more than careful  that  his mind is not sealed but open and receptive up to the very moment of the final official execution of the act.

  1. Finally, one general observation on government methods.

We live in the middle of the 20th century. We have travelled very far from the Manchesterian State, the State oflaissez-passer and laissez­ faire of the 19th century. Today, even democratic government has a hand in everything and extends its sway over all aspects of life. It does not even hesitate and may not hesitate from penetrating into the private domain of the individual, except that under a democratic regime the invasion does not come from the outside or from above, because govern­ ment itself is of the very essence of the citizen's life, residing with him in the same spiritual climate. This association dulls the edg of inter­ ference and atones for "the evil edict" affecting the interests of the individual. For "faithful are the wounds of a friend". Therefore,  and in order to encourage this close relationship, the democratic state must be diligent in eliminating all external bureaucratic barriers separating the government from the governed so that the citizen knows and feels that any sacrifice demanded of him does not emanate from a "position of strength" but is the result of careful consideration of the conflicting interests between the community and the individual. In a nutshell, this is the entire theory of democratic rule-the rest is mere commentary. All else is encompassed in this basic maxim.

  1. For the reasons stated, I am of the opinion that the proclamation of separation must be set aside, and the status quo as it existed before the proclamation restored.

SUSSMAN J. I concur.

WITKON J. I too am of the opinion that the order must be made absolute, and I will state my reasons briefly.

It seems to me that the root of the trouble lies in the failure of the commission of inquiry to investigate and ascertain the identity of the res_idents of the district who opposed its separation from the Municipality

50

 

and the reasons which they wished to advance. There is no doubt that the desire of the residents for or against separation is a most important factor, among others, likely to influence the Minister's decision. Sec. 5(1) of the Municipal Corporation Ordinance does indeed speak of the wishes of the "majority of the townsmen", meaning the entire city and not only that part which is to be separated from it. But even if the law does not expressly say that the opinion of those who reside in such part is to be considered, it is certain that in a democratic administration one may not ignore the opinion of that group which is primarily affected by the separation. It is possible that in some cases the Minister will have other considerations, more important than the wish of the majority, but this is not so in our case. Here, the Director himself of the Minister's office, in his letter of November 24, 1957, relied upon what appeared to him to be the opinion of the overwhelming majority of the residents, which indicates that in the present case the Minister did not want to decide without regard for the wishes of the residents.

In these circumstances, it is to be regretted that the opponents of separation were not invited to appear before the commission to state their case. In my opinion, this is a fault which lies at the door of the commis­ sion. I am not prepared to absolve the commission from guilt upon the grounds that it was at liberty to regard the residents' committee which supported separation as  representative  and  spokesman  of  all  or  at least a majority of the residents. It seems to me that its principal task was to find out the state of public opinion and not be satisfied with hearing persons who presumed to speak in the name of all. It was much easier for the commission to reach the residents than for the unorganized residents who knew nothing of its appointment and existence to reach the com­ mission. The number of the residents of the district is not large.  We heard of about only 250 householders. Why did not  the  commission send a note to each householder inviting anyone who wished to avail himself of the opportunity to come and be heard? Certainly, the res­ pondent's argument that the views of the opponents were in fact pre­ sented to the commission by the representatives of the Municipality of Tel Aviv, is unacceptable. The opponents are suijuris and they have the right to speak for themselves and not to be dependent upon champions who have no power or authority to speak for them. If this is true of the residents generally, how much more so of a large and important enterprise such as the Yitzhar factory which has interests of its own.

I said that it is to be regretted  that  the opponents  of  separation were not invited to appear before the commission. Even if one were to say that the commission's deliberations are not to be invalidated on

51

 

 

 

 

 

account of this initial irregularity, the refusal of the Minister to receive the opponents' representatives is cumulative to the original omission. As a result, the opponents were not able to be·heard at any stage of the proceedings. Had they been invited to appear before the commission and made such submissions as they chose, it is very possible that I would have found no fault with the Minister's refusal to enable them

. to repeat their pleas to him. He is under no duty to receive and hear personally everyone who applies. Here it seems to me that th legislature made  provision  for  the  question,  and  in  requiring  an  investigation by a commission, it prescribed the appropriate way for hearing the views of the public. The Minister's refusal gives cause for complaint, mainly because the commission did not discharge its task and did not serve as a channel for bringi g public opinion in all its aspects to the Minister's attention. In these circumstances the refusal (by the Minister) closed the only forum which still remained where the petitioners could voice their opposition to separation. I do not know what moved  the Minister  to  take this step. Particularly in view of his expression of annoyance at the intervention of the legal representative of one of the petitioners, it is sufficient for me to hold that the petitioners were here denied their elementary right to protect their interests properly.

Accordingly, I conclude by saying that in the circumstances of the case before us, it was not lawful to reject the petitioners' request to be received in interview by the Minister or another on his behalf. For this reason-and without expressing any view on the general questions which have been raised in this case-I agree that the rule should be made absolute.

 

Order nisi made absolute. Judgment given on October 30, 1958.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

52

Zoabi v. Knesset's Ethics Committee

Case/docket number: 
HCJ 6706/14
Date Decided: 
Tuesday, February 10, 2015
Decision Type: 
Original
Abstract: 

This is a statement of reasons for the judgment handed down on Dec. 10, 2014, denying the petition of Petitioner 1, Member of Knesset Hannen Zoabi, in regard to the decision of the Knesset Ethics Committee that found that Petitioner 1 had violated Rule 1A of the Knesset Ethics Rules, and ordered her suspension from participation in meetings of the Knesset plenum and committees, other than for voting, for a period of six months. This decision was made following two statements to the media made by the Petitioner. One was a statement made in a radio interview several days after the abduction of the late Naftali Frenkel, Gil-Ad Shaar and Eyal Yifrach in which the Petitioner, while clarifying that she did not agree with the kidnappers, stated that the kidnappers were not terrorists and justified their actions. The second was a statement that appeared in an article published on the Internet, in the context of which the Petitioner called for the imposition of a blockade of Israel rather than conduct negotiations with it. The decision examined the following questions: Did the Ethics Committee have the authority to impose sanctions for political statements made by a member of the Knesset that were expressed or published outside of the Knesset building, when, in principle, such statements are protected by the functional immunity granted to a member of the Knesset? If so, did the Ethics Committee exercise its authority lawfully under the circumstances of the case?

 

The High Court of Justice (per Deputy President M. Naor, Justices E. Rubinstein, E. Hayut and H. Melcer concurring, Justice S. Joubran dissenting) denied the petition for the following reasons:

 

Under the rule established in the Makhoul case, the functional immunity granted to a member of the Knesset by virtue of sec. 1(a) of the Immunity Law does not serve as a shield to proceedings against a member of the Knesset by the Knesset Ethics Committee. The Court rejected the Petitioners’ argument that the rule should be narrowly construed to apply only to circumstances concerning statements made within the Knesset building, or derogatory statements that have a potential for interfering with the proper functioning of the Knesset or that might harm the internal relationships among its members. As held in the Makhoul case, imposing sanctions for unethical statements or actions does not constitute a circumvention of functional immunity. That is also true in regard to the statements that are the subject of these proceedings, even though they were made outside of the Knesset and not in regard to any specific person or organization. Thus, even assuming that the Petitioner’s statements enjoyed functional immunity, it would not prevent the Ethics Committee from addressing them in accordance with the current ethics rules.

 

Indeed, political expression is of particular importance for members of the Knesset, as it is by that means that Knesset members present their positions to their electorate. This is particularly so in regard to a Knesset member who represents a minority group. Therefore, ethical review of the statements of Knesset members should be limited as far as possible. Indeed, the Ethics Committee correctly directed itself to refrain, as far as possible, from restricting the freedom of expression of Knesset members. However, that does not mean that the Committee lacks the power to address extreme statements that constitute support for terrorist activities against the State’s citizens, or identification with such acts. While it may be that the ethics rules have more limited application to statements made outside of the Knesset, the circumstances of the current matter are extreme.

 

The Court also rejected the Petitioners’ argument that there is no express provision in the Knesset Rules of Procedure or the Ethics Rules that authorizes the Ethics Committee to impose sanctions for the Petitioner’s statements. In this regard, the Court held that the provisions of Rule 1A of the Ethics Rules – upon which the Ethics Committee based its decision in the regard to the Petitioner – establish the basic values that obligate a member of the Knesset, such as the advancement of society and the good of the State, and upholding the dignity of the Knesset and of its members. These basic values establish general guidelines for the conduct of members of the Knesset, and express the need for preserving public trust in the Knesset, and should be granted independent status that permits the imposition of ethical sanctions by reason of their breach. As noted, the general principles established under Rule 1A include a Knesset member’s obligation to act for the advancement of the good of the State and to uphold the dignity of the Knesset. It was upon those duties that the challenged decision was based.

 

In light of the above, the Court unanimously held that the decision was within the competence of the Ethics Committee.

 

The majority further held that the Ethics Committee lawfully exercised its authority in the circumstances of the instant case. It is a matter of decided law that the scope of judicial review is influenced by the type of decision under review. As a rule, the Ethics Committee enjoys broad freedom, and therefore, the scope of judicial review is relatively narrow, and it has even been held that it should be exercised with greater restraint than judicial review of the decisions of other quasi-judicial Knesset bodies. The Court may intervene when the Ethics Committee’s decision violates a law, or where substantive issues, such as the violation of basic constitutional rights, the right to due process, or a violation of the rules of natural justice is concerned. As a rule, the more severe the violation of a Knesset member’s basic rights, and the more the sanction for the conduct deviates from what would be appropriate, the greater the Court’s willingness to intervene.

 

In the present case, the Ethics Committee found that, in view of their content and the sensitivity of their timing, the Petitioner’s statements were inconsistent with the good of the State, and severely undermined public faith in, and public perception of the Knesset. The Ethics Committee therefore found that the Petitioner’s statements violated Rule 1A(2) and Rule 1A(4) of the Ethics Rules. The Committee’s conclusions did not deviate from the broad margin of discretion granted to it.

 

The Petitioner’s statements in the interview and in the article were perceived as expressing support for terrorism and for the killing of civilians. In the opinion of the President, in light of all the circumstances, the Petitioner overstepped the boundaries. In this regard, it was held, inter alia, that any form of support for terrorism, coming from any side of the debate, could seriously undermine public faith in, and public perception of the Knesset. Therefore, and in light of the nature and timing of the Petitioner’s statements, there were no grounds for intervention in the Committee’s conclusion that the Petitioner’s statements severely undermined public faith in, and public perception of the Knesset, and constituted a violation of Rule 1A(2) of the Ethics Rules, which establish, inter alia, that a member of the Knesset act for the advancement of the good of the State. It was noted that the primary purpose of that Rule is to ensure that a member of the Knesset act in the public interest, and not exploit his status and authority for personal benefit. In the instant case, on their face, the Petitioner’s statements were not intended to promote her personal interests. However, the HCJ found that even extreme acts and statements that comprise an element of legitimizing terrorist acts against the State’s citizenry are inconsistent with the good of the State. The Petitioner’s statements were not published in the media with explanatory notes. Their spirit – despite the Petitioner’s subsequent disclaimers – was that of identification with terrorist acts and support of violence as a means for achieving political ends. Under these circumstances, there was no room for intervention in the Ethics Committee’s decision that the Petitioner violated the Ethics Rules.

 

As far as the sanction imposed by the Ethics Committee was concerned, the Court noted that the Committee’s broad discretion also applies to deciding upon the sanction. However, that broad power is not to be understood as a license to impose arbitrary punishment. In imposing a sanction for a violation of the Ethics Rules, the Committee must consider a broad spectrum of factors. In general, the sanction imposed must be proportionate to the severity of the ethical violation committed by the Knesset member. Consequently, the Committee must take into account the severity of the offense and the circumstances of its commission. In regard to statements of members of the Knesset, consideration must be given, inter alia, to the content of the statement, its subject, and its timing. A statement that defames or denigrates individuals or groups is not the same as another outrageous or deviant statement, and a statement that encourages terrorism or violence is not the same as another extreme statement. In addition, the Ethics Committee must take into consideration the circumstances of the actual Knesset member before it, including the question of whether he expressed remorse for his actions, as well as his overall ethics record. Under the circumstances of this case, the Court did not find grounds to intervene in the sanction imposed upon the Petitioner. While the sanction – suspension from participation in meetings of the Knesset plenum and committees for the maximum permitted period – is very severe under the existing hierarchy of sanctions, and is exceptionally severe in comparison to sanctions imposed in the past, under the circumstances, and in light of the Petitioner’s extreme statements and their timing, the Court would not accept the Petitioners’ claim of discrimination and disproportionality. Moreover, the sanction in this case was not a comprehensive suspension from Knesset activity for six months.   In addition, given that most of the suspension would coincide with the Knesset’s summer recess – a consideration that the Committee bore in mind – as well as with the elections recess – a consideration of which the Committee was unaware – the practical significance of intervention under these circumstances would be minimal at most.

 

Deputy President Rubinstein and Justices E. Hayut and H. Melcer concurred, while adding comments. Thus, inter alia, Justice Hayut added two comments. The first was in regard to a Knesset member’s right to inspect the Ethics Committee’s protocols in regard to the proceedings in his matter, which is required as a matter of due process. The second concerned the restriction of the freedom of political expression of an elected representative who represents a minority group. Justice Melcer added a comment in regard to the distinction between legal prohibitions and ethical prohibitions.

 

Justice Joubran (dissenting) concurred with the President in regard to the matter of competence, however, in his view, a distinction should be made between solely political expressions and expressions that comprised profanity and defamation of individuals and groups. However, in his view, that distinction was not a matter of authority, but rather concerned discretion. That is, it concerned the scope of judicial review appropriate to decisions in regard to such expressions, and the degree of protection that should be afforded them.

 

In regard to discretion, Justice Joubran was of the opinion that a member of Knesset can be convicted of an ethical violation under Rule 1A(4) where the member violated the dignity of the Knesset or its members, or where a member of Knesset acted in a manner that undermines public trust, while a conviction under Rule 1A(2) would be appropriate where a member of Knesset’s actions were not for the good of the State, as opposed to a situation in which the member did not act to advance its good. This interpretation takes into account that neutral conduct of Knesset members that does not advance but does not harm the State will not fall within the purview of the prohibition. Justice Joubran added that in view of the great value in ensuring the freedom of political expression of Knesset members and limiting its restriction as far as possible, particularly where representatives of minority groups are concerned, and in view of the broad language of the above ethics rules, the conviction of a member of the Knesset by virtue of one of them should be limited only to cases in which the content of the statements is clear, unequivocal and extreme. In the instant case, Justice Joubran was of the opinion that such clear, unequivocal content could not be attributed to the statements of the Petitioner, both in light of her later expression of reservations in regard to the abduction already in the course of making the statements, and in view of her later explanations in the media. Therefore, in the opinion of Justice Joubran, the decision of the Ethics Committee was unlawful, and the petition should have been granted.

Voting Justices: 
Primary Author
majority opinion
Author
concurrence
Author
concurrence
Author
concurrence
Author
dissent
Full text of the opinion: 

 

 

The Supreme Court sitting as the High Court of Justice

 

HCJ 6706/14

 

 

Before: The Honorable President M. Naor

The Honorable Deputy President E. Rubinstein The Honorable Justice S. Joubran

The Honorable Justice E. Hayut The Honorable Justice H. Melcer

 

The Petitioners:                1.            MK Hanin Zoabi

2.            Adalah – The Legal Center for Arab Minority Rights in Israel

3.            The Association of Civil Rights in Israel

 

v e r s u s

 

The Respondents:           1.            The Knesset's Ethics Committee

                2.            The Chairperson of the Knesset

                3.            The Knesset

 

Petition to Grant an Order Nisi

 

Date of Session:               17th of Kislev, 5775 (December 9, 2014)

 

On behalf of the Petitioners:      Adv. Hassan Jabarin; Adv. Dan Yakir;

Adv. Maisana Morani

 

On behalf of the Respondents: Adv. Eyal Yinnon; Adv. Dr. Gur Bligh

 

 

J U D G M E N T (R E A S O N S)

 

 

President M. Naor:

 

1.            On December 10, 2014, we issued  a judgment without reasons in which the Petition was denied by a majority opinion (Deputy President M. Naor, Justice E. Rubinstein, Justice E. Hayut and Justice H. Melcer, against the dissenting opinion of Justice S. Joubran). In the judgement we ruled that:

 

"1. The Petition before us addresses the decision of Respondent 1, the Knesset's Ethics Committee, which determines that Petitioner 1 violated Rule 1A of the Rules of Ethics for Members of Knesset, and instructs that she be removed from sittings of the Knesset's plenum and committees, other than participating in votes, for a period of six months, commencing on July 30, 2014, and ending on January  29,  2015.  Approximately  half  of  the  period  of

 

 

 

removal was during the Knesset's summer recess, which lasted from August 3, 2014, through October 26, 2014.

 

2.            In the Petition, the Court was requested to intervene in and cancel the  Ethics Committee's decision  regarding the Petitioner. Alternatively, the Court was requested to intervene in the removal sanction that was imposed upon the Petitioner.

 

3.            On November 9, 2014, President A. Grunis instructed the Respondents to inform whether they agree that the hearing be held as though an order nisi had been issued and based on the material that had been filed at such time. After the Respondents informed that they agree, the President instructed that the Petition be brought before an extended bench of five justices.

 

4.            On December 9, 2014, we heard the Parties' oral arguments.

 

5.            The six month period is meant to end on January 29, 2015. Therefore we have found it to be appropriate to give our ruling now, without reasons. The reasons shall be given separately.

 

6.            By a majority of opinions (Deputy President M. Naor, Justice E. Rubinstein, Justice E. Hayut and Justice H. Melcer) and against the dissenting opinion of Justice S. Joubran, we rule as follows: There is no place to intervene in the Ethics Committee's decision that the Petitioner violated Rule 1A of the Rules of Ethics for Members of Knesset. As for the sanction: the sanction that was imposed is indeed unusual in its severity compared to sanctions imposed in the past. However, in the circumstances at hand and in light of the Petitioner's harsh words and the timing in which they were spoken, and considering that a significant part of the period of the sanction was during times of recess, we have not found it appropriate to intervene in the broad discretion that is granted to the Ethics Committee. Inter alia, we have taken into consideration the fact that two days ago the Dispersal of the 19th Knesset Law, 5775-2014 was legislated. In light of this law, the practical significance of intervening in the sanction is miniscule, if at all existent.

 

7.            Therefore, the Petition is denied. There shall be no order for expenses".

 

We shall now elaborate on our reasons.

 

 

 

Background

 

The Complaints Against the Petitioner and Her Responses Thereto

 

2.            The Petitioner is a member of the 19th Knesset on behalf of the Balad party. On June 17, 2014, the Petitioner interviewed on a morning program on Radio Tel Aviv (hereinafter: the "Interview"). The Interview primarily addressed the abduction of the three teenagers: the late Naftali Frenkel, Gil-Ad Sha'er and Eyal Yifrah, which occurred on June 12, 2014, in the area of Gush  Etzion.  The Interview was held approximately five days after the abduction, at a time when the teenagers' fate was not yet known. During the Interview the Petitioner said the following:

 

"Look, look… I, let's ask a question like this, ah, naively, is it strange that people who are under occupation, who live lives that are not normal, and who live in a reality in which Israel abducts detainees every day, is it strange to you that they abduct? […] They are not terrorists […] Even if I do not agree with them, they are people who do not see any opening […] They are people who do not see any opening to change their reality, and they are forced to use these means, until Israel shall sober up a little, until the citizens of Israel, the Israeli society shall sober up a little and shall see the suffering, feel the other's suffering"

 

3.            On July 13, 2014, in the midst of operation "Protective Edge", the  www.felesteen.ps website published an article that the Petitioner wrote, and which had been previously published on the www.arab48.co.il website (hereinafter: the "Article"). Inter alia, the following, was written in the Article:

 

"In order for Israel to be convinced that it is not possible to maintain and deepen the occupation, and for it to declare the end of the achievements of the detestable trinity: the fence, the siege and coordination, which it believed turned the occupation into a no-cost occupation absent from the Israeli reality – the Palestinians must declare the end of their own lethal trinity: coordination, negotiations and the internal dispute. We must abandon the lethal trinity and declare a popular resistance instead of security coordination and impose a siege on Israel instead of negotiating therewith, and unity instead of the internal dispute" (a copy of the Article in Arabic and its translation to Hebrew were attached as Exhibit P/5 of the Petition).

 

4.            Following these  remarks, a number of complaints were filed with the  Ethics Committee against the Petitioner. The main complaint was filed on July 22, 2014, by the Chairperson of the Knesset. In this complaint the Chairperson  of  the Knesset stated that while he is aware of the Ethics Committee's position that the members of Knesset's freedom of political expression must be protected, he is of the opinion that the Petitioner "has long since crossed any line with respect to the

 

 

 

conduct that is expected of the MKs" and that the many approaches that are directed to him from the public in this matter "indicate that this is not an 'ordinary' case of a harsh or outrageous remark […], but rather continuous provocative conduct, which could materially erode the status of the Knesset in the eyes of the public." The Chairperson of the Knesset's complaint also mentioned a video clip that documents a confrontation between the Petitioner and policemen during a protest. The Ethics Committee decided not to refer to this video clip in its decision, and therefore I shall not address it.

 

5.            The Petitioner filed a response to the complaint. In her response the Petitioner stated that she "completely rejects the vexatious complaint that is indicative of a dominating culture of racism and a need to rule others and oppress their political opinions". The Petitioner added that the complaints against her were filed on political grounds and that "one must not surrender to those who disagree with me and want to silence me and punish me and even retaliate against me." With regard to the things she said in relation to the abduction of the teenagers, the Petitioner stated laconically that "I referred to the context of the sentence in a series of media interviews and I shall not reiterate it again, and I shall ask that the Ethics Committee review them to receive a complete picture". It is not superfluous to note that the Petitioner did not attach the said interviews to her response. Based on her said statement, the Petitioner asked that the Ethics Committee reject the complaint.

 

The Decision which is the Subject of the Petition

 

6.            On July 29, 2014, the Ethics Committee convened to discuss the said complaints against the Petitioner. The committee decided by a majority of opinions that the two remarks specified above constitute a violation of Rule 1A of the Rules of Ethics (Decision 16/19 of the Knesset's Ethics Committee "In the matter of Complaints against Knesset Member Zoabi" (July 29, 2014)). The  committee indeed emphasized that its consistent position is that to the extent possible, the limitation of freedom of political expression of members of Knesset should be avoided; that the members of Knesset's right to express public criticism of the government is maintained also during times of war; and that the mere voicing of harsh criticism on military moves or on government policy during times of war, should not be viewed as a violation of the Rules of Ethics. However, the committee ruled that one must distinguish between legitimate protest – harsh as it may be – and encouraging the enemies of the State and legitimizing acts of terror against its citizens. The committee added that the public in Israel, like in any state, "expects that members of Parliament, who declare allegiance to the State, shall not encourage those who act against it and those who wish to kill its soldiers and citizens and shall not support them […]" (paragraphs 8-9 of the decision).

 

7.            As for the Interview, the Ethics Committee ruled that even though the Petitioner clarified that she does not agree with the abductors, her statement that they are not terrorists and her justification of their actions – especially when the abducted teenagers' fate was yet unknown – constitutes "identifying with enemies of the State" (paragraph 9 of the decision). Regarding the Article, the committee ruled that it is not possible to interpret its content as anything other than "statements which intend to harm  the State  of Israel,  its security and its basic  interests" (paragraph 10 of the decision).

 

 

 

 

8.            The Ethics Committee ruled that the Petitioner's words do not coincide with the State's best interest and prejudice the public's trust in the Knesset and the Knesset's image. Therefore, it was ruled that the Petitioner violated Rule 1A of the Rules of Ethics and imposed a sanction of her removal from the sessions of the Knesset plenum and its committees, other than participating in votes, for a period of six months, beginning from July 30, 2014, and ending on January 29, 2015. Approximately three months of the removal period were during the Knesset's summer recess, which lasted from August 3, 2014, through October 26, 2014. On December 9, 2014, the Dispersal of the 19th Knesset Law, 5775-2014, was published in the Official Gazette (Reshumot). This law provides that the 19th Knesset shall disperse before the end of its term and that the elections for the 20th Knesset shall take place on March 17, 2015. Consequently, the Knesset Committee decided that an elections recess shall begin on December 11, 2014, lasting until the 20th Knesset convenes (see: Knesset Committee Decision "In the Matter of the Dates of the Elections  Recess and the Knesset's Activity During the Recess" (December 10, 2014)). Therefore, the remaining part of the period of removal – over a month and a half – also falls during recess.

 

9.            To complete the picture, it shall be noted that on August 3, 2014, the Petitioner's attorneys requested, "in order to file a petition to the High Court of Justice" against the decision, to review the minutes of the Petitioner's matter and the materials presented to the committee in the process of reaching its decision. On August 7, 2014, the Knesset's legal counsel replied to the request and informed the Petitioner that pursuant to Rule 21 of the Rules of Ethics, the ethics proceedings, including the documents and the minutes in the matter thereof, are privileged. The Knesset's legal counsel explained in his response that the committee recognizes that there are exceptional situations in which public interest requires disclosure of material from its sessions, such as a situation in which the use of the material is required for the purpose of legal proceedings. However, he stated, the exception relates to the circumstances in which the material from the committee's sessions is required for other legal proceedings and not for the purpose of challenging the decision of the Ethics Committee itself. It was elucidated that the committee is concerned about creating a precedent which will adversely affect the ability of committee members to properly fulfill their duties. Therefore, he informed that the committee unanimously rejected the petition to lift the privilege from the minutes of the session, but decided that if indeed a petition shall be filed, it shall provide the minutes of the session in the Petitioner's matter, for the Court's eyes only.

 

The Petitioner's Appeal of the Decision

 

10.          On August 13, 2014, the Petitioner appealed the Ethics Committee's decision before the plenum of the Knesset. The Petitioner's appeal was filed pursuant to Section 43 of the Knesset's By-Laws, which provides that a member of Knesset may appeal a decision of the Ethics Committee before the plenum, if it decided, inter alia, to remove him from Knesset sessions for the duration of four days of sessions, or more.

 

11.          In her appeal, the Petitioner argued that the Ethics Committee acted ultra vires and in a manner that is contrary to the principle of freedom of political expression. She

 

 

 

further argued that it emerges from the reasoning of the decision that it is not based on a proper evidentiary foundation, and that the sanction imposed is "as far as is known, the most severe sanction that was ever imposed upon a member of Knesset", due to irrelevant considerations and is disproportionate. The Petitioner requested that the Chairperson of the Knesset schedule an urgent session before the plenum of the Knesset to hear the appeal, and on August 20, 2014, she also sent a reminder letter regarding this matter. On August 25, 2014, the Knesset's legal counsel replied to the Petitioner's letter claiming that the Chairperson of  the Knesset does not have authority to convene the plenum of the Knesset during the recess (other than pursuant to Section 9(b) of the Knesset Law, 5754-1994, which empowers him to convene the plenum of the Knesset during recess, in accordance with the demand of 25 members of Knesset or of the Government). Therefore, he informed that it will not be possible to hear the appeal before the beginning of the winter session.

 

12.          The Knesset plenum held a discussion regarding the Petitioner's appeal on October 29, 2014. The Petitioner argued before the plenum, inter alia, that the Ethics Committee's decision is unprecedented in its nature and severity and that this is a vindictive and disproportionate decision. The chairperson of the Ethics Committee, Knesset Member Yitzchak Cohen, responded to the Petitioner's statements. In his response, the chairperson of the Ethics Committee reiterated the committee's main reasons, as were expressed in its decision. In the vote that took place thereafter, 16 members of Knesset voted in favor of accepting the Petitioner's appeal, 68 members of Knesset objected and one member of Knesset abstained. Thus, the petition was denied.

 

The Petition before Us

 

13.          The Petition before us was filed on October 7, 2014, approximately two and half months after the Ethics Committee's decision in the Petitioner's matter and before her appeal had been heard by the Knesset plenum. Therefore, and in light of the Respondents' notice dated October 20, 2014, that the appeal will be heard on October 28, 2014, the Court ruled that it is inappropriate to address the Petition before the Knesset rules on the Petitioner's appeal (Justice Y. Danziger, decision dated October 22, 2014). After the Knesset plenum denied the Petitioner's appeal, the discussion regarding the Petition was renewed. On November 9, 2014, President A. Grunis instructed the Respondents to inform whether they agree that the hearing be held as though an order nisi had been issued and based on the material that had been filed at such time. After the Respondents informed that they agree, the President instructed that the Petition be brought before an extended bench of five justices.

 

On December 9, 2014, we heard the Parties' oral arguments.

 

The Petitioners' Arguments

 

14.          According to the Petitioners, the Ethics Committee acted ultra vires deciding as it did. The Petitioners claimed that the Petitioner's remarks are political remarks, which are protected by the material immunity granted to a member of Knesset under Section 1(a) of the Knesset Members Immunity, Rights and Duties Law,

 

 

 

5711-1951 (hereinafter: the "Immunity Law"). The Petitioners claimed that, following the Interview, the Petitioner explained in the media that she objects to causing harm to civilians, and to abduction of civilians in particular. The Petitioners further argued that the Attorney General examined complaints that were filed against the Petitioner following the Interview and deemed it inappropriate to open a criminal investigation into her remarks. To this regard, the Petitioners filed the State's response to the petition in HCJ 5716/14 which was directed against the Attorney General's decision in this matter (the hearing in said petition is scheduled to take place on June 10, 2015). In the aforementioned response it was noted that even though the Petitioner identified with the actions of the abductors, her statements did not amount to incitement to violence. Therefore, the Petitioners argued that the Petitioner's remarks which are the subject of the Petition are part of her freedom of political expression, and as such the Ethics Committee did not have any authority to intervene therein.

 

15.          The Petitioners further argued that while this Court has reiterated in its rulings that the material immunity of members of Knesset does not serve as a defense against sanctions at the ethical level, that case law applies only to inappropriate conduct within the house, or to slanderous remarks against another member of Knesset, an individual or a certain public. Such remarks, so it is argued, relate to managing the internal affairs of the Knesset and the relationship between its members and therefore fall within the authority of the Ethics Committee. The Petitioners draw this argument, inter alia, from a principle decision of the Ethics Committee (Decision 2/19 of the Knesset's Ethics Committee "In the Matter of Remarks by Members of Knesset" (July 2, 2013) (hereinafter: "Decision 2/19")), which states that, as a rule, complaints regarding political remarks by members of Knesset should not be discussed.

 

16.          The Petitioners argued that the Ethics Committee acted ultra vires also by basing its decision on Rule 1A of the Rules of Ethics, which "prescribes general values and principles and is not an operative provision" (paragraph 37 of the Petition). This rule, they claimed, has only a declaratory status and thus it is impossible to impose a sanction due to a violation thereof. The Petitioners claimed that the Ethics Committee is only authorized to impose sanctions in consequence of a violation of Rules of Ethics that anchor specific norms relating to  morality, conflict of interest, proper activity of the Knesset and proper conduct in the house. The Petitioners further argued that this is also customary in England. Finally, it was argued that the Ethics Committee is not authorized to determine which remarks are for the benefit of, or contrary to, the State's best interest. In light of all of the reasons specified above, the Petitioners argued that the committee's decision was ultra vires.

 

17.          Alternatively the Petitioners argued that the sanction imposed upon the Petitioner is "discriminatory and exceedingly severe" (paragraph 51 of the Petition). The Ethics Committee imposed its most severe sanction and for the longest possible period of time  and  therefore the  Petitioners  argued that its decision is disproportionate. According to the Petitioners this can also be deduced from a comparison to the committee's previous decisions which were quoted in the Petition itself, and namely the principle decision in the matter of remarks by members  of  Knesset  (Decision  2/19).  It  shall  be  noted  that  the  Petitioners

 

 

 

complained inter alia, about the Ethics Committee's refusal to provide them with the minutes of the Committee's session regarding the Petitioner's matter and requested that we instruct that they be delivered thereto. However, in the oral hearing, and due to the need for a quick ruling, the Petitioners' attorney did not insist on this, while reserving all of his arguments.

 

The Respondents' Arguments

 

18.          The Respondents argued that according to case law, the material immunity does not preclude the Ethics Committee from taking disciplinary actions against a member of Knesset. According to them, particularly in light of the existence of the material immunity, which does not allow for criminal or civil action to be taken against a member of Knesset due to his remarks, it is important to allow the Knesset to deal with such remarks at the ethical level. It was argued that the case law took a principle approach and did not support the argument that the imposition of sanctions for remarks that are covered by material immunity should only be possible in cases where the remarks are harming to collegial relationships between members of Knesset or disrupt the Knesset's proper conduct. The Respondents further argued that the fact that in a long list of decisions, the Ethics Committee recognized the importance of the freedom of political expression granted to members of Knesset, and that it is necessary, to the extent possible, to refrain from limiting it, does not mean that the Committee does not have the authority to impose sanctions for political remarks. This is not a matter of authority, so it is argued, but rather a matter of discretion.

 

19.          The Respondents further claimed that Rule 1A of the Rules of Ethics is not a declaratory rule but rather an operative provision, the violation of which can carry the imposition of sanctions. According to them, the Rules of Ethics include a variety of norms, part of which are designed as rules and part of which are designed as principles (standards) – but all of which are operative. To illustrate their argument, the Respondents stated that Rule 1A was used in the past as a basis for imposing sanctions at an ethical level in a series of cases, both as a single normative source and alongside other rules of ethics.

 

20.          As to the exercise of discretion, the Respondents argued there was no flaw in the conclusion that the Petitioner violated the Rules of Ethics. Especially taking into consideration the broad discretion that is granted to the Ethics Committee in such matters. According to the Respondents, the sanction that was imposed upon the Petitioner is proportionate. The main reason indicated by the Respondents was that the severity of the sanction is commensurate with the severity of the violation for which it was imposed – a severity that stems from the content of the Petitioner's statements and the timing thereof, and which justifies deviating from the lenient policy which the Ethics Committee has exercised with respect to political remarks. The Respondents further argued that the Petitioner's remarks during the Interview "can be perceived as legitimization of and identification with the State's enemies who are carrying out acts of terror against the citizens of the State" (paragraph 70 of the Respondents' response), at a sensitive time – approximately five days after the abduction of the teenagers and at a time when their fate was unknown. The statement that the Petitioner does not agree with the abductors does not diminish the severity of her remarks. It is further argued that the Petitioner's remarks in the

 

 

 

Article can be deemed as a call to harm the State of Israel, in the midst of the fighting in the Gaza strip during the "Protective Edge" operation. The Respondents also claimed that the time the sanction came into effect, which was at the beginning of the Knesset's summer recess, should also be considered. According to the Respondents, practically speaking this was a removal that, when decided, was for approximately three months, since during the recess the Knesset plenum only assembles in rare cases and the majority of the Knesset committees convene relatively infrequently.

 

Discussion and Ruling

 

21.          The main questions that are presented in this case are whether the Ethics Committee is authorized to impose sanctions against the Petitioner because of her remarks, which in and of themselves are protected by material immunity and which are not among those remarks that are defined as remarks that disrupt the Knesset's work or the internal relationships between its members; and whether there are provisions in the Rules of Ethics that authorize the Ethics Committee to impose sanctions in consequence of such remarks. If such authority exists, this shall lead to an additional question – whether such authority, in the circumstances at hand, was exercised lawfully. I shall discuss the questions in the order of their appearance.

 

Was the Ethics Committee Authorized to Make the Decision?

 

22.          Section 17 of the Basic Law: The Knesset prescribes that "The  members  of Knesset shall have immunity; details shall be determined in the law". The details of the immunity were determined in the Immunity Law. Sections 1(a) – 1(A1) of the Immunity Law, provide:

 

 

Immunity in the Framework of Fulfilling a Position

 

1.            (a) A member of Knesset shall not bear criminal or civil responsibility and shall be immune against any legal actions, due to voting or due to expressing an opinion orally or in writing, or due to an act performed – in or out of the Knesset – if the vote, the expression of the opinion or the act were in the framework of fulfilling his position, or for the sake of fulfilling his position, as a member of Knesset.

[…]

 

(a1) To avoid doubt, an act, including, a remark, that are not random, by a member of Knesset, which constitutes any of the following, for the purpose of this section is not deemed an expression of an opinion or an act that are made in the framework of fulfilling his position or for the sake of fulfilling his position as a member of Knesset:

 

 

 

(1)          Denial of the existence of the State of Israel as the state of the Jewish people;

(2)          Denial of the democratic character of the State;

(3)          Incitement to racism due to color or racial belonging or ethnical-national original.

(4)          Support of an armed struggle by an enemy state or of acts of terror against the State of Israel or against Jews or Arabs, due to their being Jewish or Arab, in Israel or abroad.

 

Section 1(a) of the Immunity Law grants a member of Knesset protection against criminal or civil liability and against any other legal action which could be taken, inter alia, due to expression of opinion in the framework of fulfilling his position. Section 1(a1) sets limits to this immunity.

 

23.          Alongside the material immunity, Section 13E(a) of the Immunity Law authorizes the Knesset Committee to promulgate Rules of Ethics for Members of Knesset. Additionally, Section 13D of the Immunity Law grants the Ethics Committee of the Members of Knesset the authority to judge a member of Knesset, inter alia, in matters involving the violation of the Rules of Ethics. These authorities derive from the Knesset's constitutional authority to determine its working procedures (Section 19 of the Basic Law: The Knesset). In the matter at hand, the Committee ruled that the Petitioner violated Rule 1A(2) and Rule 1A(4) of the Rules of Ethics. These rules provide as follows:

 

 

General Values

 

1A. The member of Knesset – (1) […]

(2) Is a trustee of the public and it is his duty to represent the public that voted for him in such a manner that shall serve human dignity, the advancement of society and the best interest of the State;

(3) […]

(4) Shall preserve the dignity of the Knesset and the dignity of its members, shall be devoted to fulfilling his duties in the Knesset, shall conduct himself in a manner that befits his status as a member of Knesset and shall act to foster public trust in the Knesset;

(5) […]

(6) […]

 

 

24.          The sanctions that the Ethics Committee may impose upon a member of Knesset are set in Section 13D:

 

The Ethics            13D. (a) The member of Knesset who committed

 

 

 

Committee    one of the following shall be subject to be judged by the Ethics Committee of the Members of Knesset:

[…]

(3) Violated a rule of the Rules of Ethics. […]

(d)          If the Ethics Committee ruled, by a majority of the votes of all of its members, that the member of Knesset violated the provisions of sub-section (a)(1), (1A) or (2), it may impose one of the following thereon:

(1)          A comment;

(2)          A warning;

(3)          A reprimand;

(3A) A severe reprimand;

(3B) Denial of the right to receipt the right to speak in all or some of the Knesset committees of the plenum, for a period that shall not exceed ten days of sessions;

(3C) Limitations of his activity as a member of Knesset, including prohibiting filing bills, agenda proposals, parliamentary questions, etc. except limitations regarding the right to vote, all as the committee shall decide and for a period that it shall decide and provided that the said period shall not exceed the period that remains until the end of such Knesset's session;

(4)          Removal from the sessions of the Knesset plenum and its committees for a period that shall not exceed six months, provided that the member of Knesset shall be entitled to enter the session solely for the purpose of voting;

(5)          Denial of salary and Other Payments for the period of the absence as stated in Section 2(a) or denial of salary and Other Payments for a period which shall not exceed one year due to any violation of any other provision of Section 13A.

For this purpose, "Other Payments" – payment pursuant to Chapter 9 of the Knesset Law, 5754-1994, and payments by virtue of the Retirement of Office Holders in Government Authorities Law, 5729-1969.

 

(d1) If the Ethics Committee has ruled by a majority of votes of all of its members that a

 

 

 

member of Knesset violated the provisions of sub-section (a)(3), it may exercise its authority pursuant to the provisions of sub-section (d), other than the authority under sub-section d(5).

 

25.          From the above citations, one can conclude that the Ethics Committee may impose any sanction provided in Section 13D(d) of the Immunity Law, other than the sanction provided in Section 13D(d)(5), which addresses the denial of salary or Other Payments, upon a member of Knesset who violated any of the Rules of Ethics. In the case at hand, the Ethics Committee imposed a sanction upon the Petitioner pursuant to Section 13D(d)(4) of the Immunity Law, i.e., a sanction of removal from the sessions of the Knesset plenum and its committee for six months. Prima facie, it is the maximum sanction that could be imposed due to violation of any of the Rules of Ethics. It shall be noted that the option of imposing such a sanction was added in the amendment to the Immunity Law from 2002 (Knesset Members Immunity, Rights and Duties Law (Amendment no. 28), 5762-2002). I shall return to the matter of the sanction further on.

 

26.          The parties to the Petition before us assumed that the above-quoted remarks by the Petitioner are covered by the material immunity that is granted to her as a member of Knesset, under Section 1(a) of the Immunity Law. This leads to the question whether or not said immunity prevents the Ethics Committee from addressing these remarks. In my opinion, the answer should be negative. In HCJ 12002/04 Makhoul v. The Knesset, PD 60(2) 325 (2005) (hereinafter: the "Makhoul Case"), this Court (President A. Barak, with the consent of Justices A. Procaccia and S. Joubran) ruled that the material immunity of a member of Knesset does not extend to the actions of the Ethics Committee against any of the members of Knesset. There it was ruled as follows:

 

"It has been found that the Immunity Law, in that part that relates to the immunity of a member of Knesset, was primarily meant to allow the member of Knesset to perform his work as required and to protect him against being harassed by the executive authority. The Immunity Law was not meant to prevent the Knesset from dealing with conduct occurring within itself that violate its own Rules of Ethics. Indeed, actions and remarks that fall within the framework of material immunity benefit from broad protection. As such, a member of Knesset's immunity cannot be lifted in consequence thereof. The member of Knesset is not exposed to criminal proceedings or civil actions in consequence thereof. However, such rule does not mean that such actions cannot be the subject of other internal proceedings of the Knesset, in general, and of the proceeding pursuant to Section 13D of the Immunity Law [a proceeding before the Ethics Committee – M.N], in particular. This does not mean that the Ethics Committee is prevented from handling them […]. Indeed, the material immunity protects the member of Knesset against legal actions being taken against him. However, such legal action

 

 

 

does not include actions which the Knesset takes vis-à-vis itself, when at hand are internal Knesset matters […]" (on page 388; emphases added – M.N).

 

Similarly, in the Miari Case, the justices were of the opinion that the material immunity does not apply to sanctions which the Knesset imposes upon its members, pursuant to its By-Laws, which also incorporate the Rules of Ethics (HCJ 620/85 Miari v. The Chairperson of the Knesset, PD 41(4) 169, 218-219, 234 (1987) (hereinafter: the "Miari Case")). Therefore, according to case law, material immunity does not shield members of Knesset from the authority of the Ethics Committee (compare: Bar Association Appeal 8/79 Sufrin v. The Tel Aviv District Committee of the Bar Association, PD 34(4) 185, 188 (1980) (hereinafter: the "Sufrin Case")). The Petitioners are not asking that we deviate from this case law, but rather that we interpret it narrowly. According to them the Makhoul rule applies only to circumstances relating to remarks that were made within the Knesset building or to slanderous remarks which can disrupt the Knesset's proper work or can harm the internal relationships between its members. Whereas in the case at hand, we are dealing with, what the Petitioners refer to as "pure" political remarks made in the media. I do not accept this distinction proposed by the Petitioners. Indeed the circumstances of the Makhoul Case were different from those at hand, since that case regarded a sanction that the Ethics Committee imposed due to prejudicial remarks against the government, which were made during a speech in the Knesset plenum. Notwithstanding, the main question that was raised and discussed in the Makhoul Case was a question of principle, and it addressed the relation between the Rules of Ethics and  the material immunity granted to members of Knesset. The Court ruled on this question, and  determined  that imposing sanctions  due  to  unethical  actions or remarks does not constitute a circumvention of the material immunity:

 

"Section 13D, which anchors the authorities of the Ethics Committee, does not prejudice the material immunity that is prescribed in Section 1 [of the Immunity Law – M.N.]. In fact, this section, which provides for an internal judgment mechanism, an ethical-disciplinary judgment, is meant to complement and realize the Immunity Law's underlying objectives. Actions taken at an ethical level do not circumvent the protection that is granted to the member of Knesset in the Immunity Law. It is not for no reason that the Ethics Committee's authorities are anchored in the Immunity Law which determines the members of Knesset's immunity. Section 13D complements that which is stated in Section 1. Thus, while Section 1 exempts the member of Knesset from civil or criminal liability due to unethical remarks said in the framework of fulfilling his position (or for the sake of fulfilling his position), Section 13D, which is of the same normative standing, clarifies that the member of Knesset is not absolutely exempt. Indeed, Section 13D of the Immunity Law reflects the 'interest of the Knesset itself to denunciate negative conduct among its member, and the public importance this must be granted'[…]"

 

 

 

(on page 339; emphases added – M.N).

 

These statements are also relevant to the remarks which are the subject of our discussion, even though they were made outside of the house and not in connection with a specific organization or person. The material immunity was meant to ensure that a member of Knesset would have freedom of expression and opinion, without being concerned that this could cost him in a criminal conviction or a personal monetary charge in a civil proceeding (see: HCJ 11225/03 Bishara v. The Attorney General, PD 60(4) 287, 300 (2006) (hereinafter: the "Bishara Case");

HCJ 1843/93 Pinchasi v. The Israel Knesset, PD 49(1) 661, 682 (1995); Criminal Appeal 255/68 The State of Israel v. Ben Moshe PD 22(2) 427, 439 (1968)). Additionally, the material immunity was meant to promote parliamentary supervision of the executive authority, without being concerned of being harassed thereby. However, the material immunity was not meant to protect a member of Knesset against internal criticism applied by the Ethics Committee. As has been ruled "The purpose of the Immunity Law was not to grant the legislative authority a mechanism that would prevent it from critiquing the actions of its members, while frustrating its constitutional authority to determine its own procedures […]" (the Makhoul Case, on page 337; emphasis added – M.N). The objective of the Immunity Law is not to prevent the Knesset from taking actions at the internal-ethical level, pursuant to the Rules of Ethics that were determined. Such conclusion is also supported by the material differences between these arrangements: a ruling that a certain act by a member of Knesset is not covered by the material immunity or that immunity should be lifted also has implications towards entities outside of the Knesset. In contrast, the ethics proceedings are internal proceedings (see and compare: the Miari Case, on page 196; compare: HCJ 306/81 Flatto Sharon v. The Knesset Committee, PD 35(4) 118, 126 (1981) (hereinafter: the "Flatto Sharon Case")). Determining that a member of Knesset's remark is not covered by the material immunity could result in criminal charges, with all that that entails. In contrast, the ruling that a member of Knesset violated one of the Rules of Ethics could at most result in a partial interruption of his parliamentary activity, for a limited period of time (see and compare: Permission for Civil Appeal  7504/95  Yassin  v. The Registrar of  Parties,  PD 50(2)  45 (1996); the Bishara Case, on pages 313-314, 318; compare: Permission for Civil Appeal 2316/96 Isaacson v. The Registrar of Parties, PD 50(2) 529 (1996); see also in  the  judgment of the  European Court  of Human Rights, in  which the majority opinion addressed the distinction between immunity that is granted to a member of parliament and internal parliamentary critique of his conduct; A. v. United Kingdom, 2002-X Eur. Ct. H. R. 917, para 86). The harm caused by determining that a member of Knesset violated one of the Rules of Ethics is less intense than in the case of determining that material immunity does not apply to his actions. The applicability of the material immunity and its objectives can be a consideration in the framework of the Ethics Committee's decisions, but they do not undermine its authority. In light of that stated, even assuming that the Petitioner's remarks are covered by the material immunity, there was nothing preventing the Ethics Committee from addressing them pursuant to the existing Rules of Ethics.

 

27.          As mentioned, the Petitioners further argued in a general and sweeping manner that  the  Ethics  Committee  has  no  authority  to  address  political  remarks  by

 

 

 

members of Knesset and that its authority is limited to inappropriate conduct of members of Knesset within the house or to the internal relationships between the members. I do not accept these arguments. Indeed, freedom of political expression is of special importance for a member of Knesset, since it is by such means that the member of Knesset expresses the positions of the public that elected him. This is particularly true when a member of Knesset who represents a minority group is concerned (see also, in a context similar to the matter at hand, the position of the European Court of Human Rights in this matter: Szel v. Hungary, App. no. 44357/13 (Sep. 16, 2014) (hereinafter: the "Szel Case"); Karacsony v. Hungary, App. no. 42461/13 (Sep. 16, 2014) (hereinafter: the "Karacsony Case")), "The political expression – the speech, the article, the interview – are the primary workings tools of the member of Knesset" (the Bishara Case, on page 325; see also, ibid, on page 317). The freedom of expression also affects the disciplinary rules that apply to members of Knesset (compare: Bar Association Appeal 1734/00 Tel Aviv Jaffa District Committee of the Bar Association v. Sheftel (January 1, 2002) (hereinafter: the "Sheftel Case"); Civil Service Disciplinary Appeal 5/86 Sapiro v. The Civil Service Commissioner, PD 40(4) 227, 237 (1986)). Due to freedom of expression, the ethical review of remarks by a member of Knesset must be as limited as possible. Indeed, the Ethics Committee instructed itself – and justifiably so – to refrain, to the extent possible, from limiting the members of Knesset's freedom of political expression. In Decision 2/19, the committee decided as follows:

 

"[…] If, in all that relates to political remarks, the committee's position is that in general they should be dismissed in limine, even if at hand are extreme and outrageous remarks, then with regard to remarks that constitute bad-mouthing,  slandering, mudslinging and humiliating of individuals and publics, the committee's position is materially different. The committee is of the opinion that such remarks materially harm the status of the Knesset and its dignity […]" (emphasis omitted – M.N).

 

28.          The Ethics Committee expressed a similar position in additional principle decisions (see: Decision 83/18 of the Knesset's Ethics Committee "In the Matter of Complaints regarding Remarks by Members of Knesset Against Persons and Organizations" (December 31, 2012); Decision 7/18 of the Knesset's Ethics Committee "In the Matter of Ethics and Freedom of Expression – the Committee's Decisions regarding Remarks by Members of Knesset" (October 12, 2009)). However, this does not mean that the committee is not authorized to address extreme expressions that amount to supporting acts of terror against the citizens of the State or identifying with such actions. The purpose of the Rules of Ethics for Members of Knesset is to maintain proper conduct by members of Knesset in order to foster the public's trust in the Knesset, preserve the dignity of the Knesset and its integrity (see and compare: the Sheftel Case, paragraph 22 of my judgment, Bar Association Appeal 2579/90 Bar Association District  Committee  v. Anonymous, PD 45(4) 729, 733 (1991); see also: the Report of the Committee for Preparing the Rules of Ethics for Members of Knesset, December 2006, on pages 43-45 (hereinafter: the "Rules of Ethics Preparation Committee Report")). The public's trust in the Knesset may also be prejudiced by remarks made by a member

 

 

 

of Knesset outside of the Knesset, which are not necessarily related to inappropriate conduct within the Knesset or to the internal relationships between its members. This is the case, for example, when an act or remark that is interpreted as supporting violence against citizens is concerned. A member of Knesset carries the Rules of Ethics with him wherever he goes (compare: the Sheftel Case, paragraphs 13-16 of my judgment). Their applicability is not limited to his relationship with other members of Knesset or internal parliamentary conduct. It is possible that the applicability of the Rules of Ethics on remarks outside of the Knesset is narrower. However, the circumstances of the case at hand are extreme. It is worth noting that the code of ethics for members of Parliament in Britain, to which the Petitioners referred, provides that the Rules of Ethics are not intended to regulate a member of Parliament's conduct in his personal life, outside the walls of the parliament. However, conduct by a member of Parliament that significantly damages the reputation or the integrity of the parliament or its members is excluded from that rule (U.K Code of Conduct for Members of Parliament (passed pursuant to the Resolution of the House of Jul. 19, 1995) § 2-3 (hereinafter: "U.K. Code of Conduct for Members of Parliament").

 

29.          The Petitioners further argued that the Ethics Committee's decision in the case at hand does not coincide with its above-mentioned principle decisions which reject intervening in the members of Knesset's freedom of political expression. However, these decisions do not constitute a precedent that denies the committee of its authority to address extraordinary remarks which in its opinion constitute a violation of the Rules of Ethics. The Ethics Committee elaborated on this matter in its decision that addressed harsh remarks by a member of Knesset during the "Pillar of Defense" operation, against those he referred to as "leftists":

 

"The majority of the complaints that have been filed to the Ethics Committee in the 18th Knesset were related to remarks by members of Knesset. The Ethics Committee, despite repeatedly being of the opinion that harsh and outrageous remarks were at issue, decided, in the majority of cases, not to exercise its  authorities, based on an orientation  of not narrowing the members of Knesset's freedom of expression […] however the fundamental principle of freedom of expression cannot protect anything a member of  Knesset says, and the committee is of the opinion that this is one of the cases in which it must intervene and express its opinion that a line has been crossed between a legitimate, albeit harsh and outrageous, statement and words of incitement. Statements in the form of 'Leftists Out', 'Leftist to Gaza' and 'Leftist Traitors' are not statements in the framework of the broad freedom of political expression which is granted to members of Knesset and do not coincide with the proper and expected conduct of a member of Knesset […]" (Decision 85/18 of the Knesset's Ethics Committee "In the Matter of Complaints against Knesset Member Michael Ben Ari regarding Remarks" (December 31, 2012)) (emphasis added – M.N.)

 

 

 

30.          The Ethics Committee also found it to be justified in other cases to exercise its authority with regard to remarks by members of Knesset which encouraged acts of terror or violence. For example, the committee decided to apply sanctions for statements praising Shahids (martyrs) (Decision 73/18 of the Knesset's Ethics Committee "In the Matter of Complaints against Knesset Member Ahmad Tibi due to a Speech on Martyrs Day'" (March 5, 2012) (hereinafter: the "Decision regarding the "Martyrs Day"")); for public support of the Intifada (Decision of the Knesset's Ethics Committee "In the Matter of a Complaint by Knesset Member Uri Yehuda Ariel against Knesset Member Ahmad Tibi" (June 24, 2003) (hereinafter: the "Decision regarding Supporting the Intifada")); and for the statement "Whoever removed sovereign land from the State of Israel – is to be sentenced to death" (Decision of the Knesset's Ethics Committee "In the Matter of a Complaint by Knesset Member Colette Avital against Knesset Member Arie Eldad" (June 24, 2008) (hereinafter: the "Decision in the Matter of Knesset Member Eldad"). Therefore, the Ethics Committee's principle decisions do not prevent its intervention in the current case and exercising the committee's authority with respect to remarks of the kind addressed in the Petition is not unprecedented.

 

31.          An additional argument by the Petitioners regarding the Committee's authority is that there is no explicit provision in the Knesset's By-Laws or in the Rules of Ethics that authorizes the Ethics Committee to impose sanctions against the Petitioner's remarks. The Petitioners argued that Rule 1A of the Rules of Ethics – upon which the Ethics Committee's decision in the Petitioner's matter relied – is a "declaratory section that includes abstract principles and values and therefore has only an interpretational declaratory status" (paragraph 39 of the Petition), and does not have operative status. This argument, too, is to be denied. The provision of Rule 1A of the Rules of Ethics for Member of Knesset, as was presented above, prescribes fundamental values which bind the member of Knesset, such as promoting society and the best interest of the State and preserving the dignity of the Knesset and its members. Other Rules of Ethics regulate a series of specific matters, such as additional occupation of a member of Knesset (Chapter E of the Rules of Ethics) or provisions that relate to a declaration of capital (Chapter F of the Rules of Ethics).

 

32.          The fundamental values that were prescribed in Rule 1A of the Rules of Ethics outline general criteria for the members of Knesset's conduct (compare: Bar Association Appeal 7892/04 The Tel Aviv District Committee of the Bar Association v. Boteach, paragraph 14 of Deputy President M. Cheshin's judgment (May 10, 2005) (hereinafter: the "Boteach Case")), and express the need to preserve the public's trust in the Knesset. I am of the opinion that they should be considered as having an independent status, which allows imposing ethical sanctions in consequence of the violation thereof. This is necessary since naturally, specific rules of ethics do not cover all the issues that could arise at an ethical level. In the absence of a specific rule that regulates a specific situation, the member of Knesset can  find guidance in  advance in the  general values; and retroactively, the Ethics Committee can decide that a member of Knesset violated the Rules of Ethics, by violating one of the general values (see also: the Rules of Ethics Preparation Committee Report on pages 45-46; Proposal for Code of Ethics that was Submitted by the Knesset Committee's Rules of Ethics Preparation Sub-Committee,  2011;  Assaf  Shapira  "Ethics  in  the  Knesset"  Parliament  70

 

 

 

(2011). This illustrates the advantage of normative arrangements that are formatted as principles, which allow them to be applied in dynamic circumstances (for the distinction between rules and principles see, for example: Aharon Barak Purposive Interpretation in Law 248-249 (2003)).

 

33.          My conclusion also coincides with this Court's judgment in the Makhoul Case, where the Court did not find cause to intervene in the ethical sanctions that were imposed upon a member of Knesset in consequence of violating Rule 1A of the Rules of Ethics. It shall be noted that Rule 1A, as well as Rule 2 of the Rules of Ethics, which also outlines general criteria for the conduct of the members of Knesset, has served in various cases as the basis for imposing ethical sanctions on members of Knesset (see, for example: Decision 30/17 of the Knesset's Ethics Committee "In the Matter of Mutual Complaints of Knesset Member Effi Eitam and Knesset Member Ahmad Tibi" (May 27, 2008); Decision 2/17 of the Knesset's Ethics Committee "In the Matter of a Complaint by Knesset Member Ruhama Avraham against Knesset Member Sofa Landver" (July 11, 2006)). Furthermore, general principles exist in various systems of disciplinary rules. The violation of these principles could justify imposing a disciplinary sanction upon the violating party. For example, the Rules of Ethics for Lawyers include general principles, the violation of which could raise cause for being found guilty of a disciplinary offense (see: Rules 2, 23, 32-33 of the Bar Association (Professional Ethics) Rules, 5746-1986); the Boteach Case, paragraph 14 of Deputy President M. Cheshin's judgment; Bar Association Appeal 736/04 District Committee of the Bar Association v. Mizrachi PD 58(6) 200 (2004); Bar Association Appeal 2379/07 Tel Aviv – Jaffa District Committee of the Bar Association v. Rosenzweig (February 12, 2008); also see and compare: Section 61(3) of the Bar Association Law, 5721-1961, which prescribes that any act or omission that do not befit the legal profession are, inter alia, a disciplinary offense; Bar Association Appeal 15/88 Anonymous v. The  State's Attorney, PD 43(1) 584. 588 (1989); Bar Association Appeal 17/79 Tel Aviv Jaffa District Committee of the Bar Association v. Anonymous, PD 34(3) 756, 660-661 (1980); also see: Gabriel Kling Ethics For Lawyers 489-494 (2001)).

 

34.          Similarly, the Rules of Ethics for judges include general principles, the violation of which has operative implications (see: Rules 1-7, and particularly Rule 2(b) of the Rules of Ethics for Judges, 5767-2007; see also: Gabriel Kling Ethics for Judges 15-16 (2014)). Accordingly, the judges' ethics committee has refrained from approving certain actions in advance, based on general principles, such as the principle that a judge must refrain from actions which do not befit his status (see: Decision A/13/17 (February 25, 2013), which did not permit judges to participate in a personal mentoring venture of the Executives Program in the School of Public Policy; Decision A/11/53 (July 27, 2011), that it would not be appropriate to allow charging the parties to a legal proceeding a judge's travel expenses; see also Section 18(a) of the Courts [Consolidated Version] Law, 5744-1984, which prescribes that the Minister of Justice may file a complaint to the disciplinary court against a judge who behaved in a manner that does not befit the status of a judge in Israel). Thus, applying such a rule with respect to the Rules of Ethics for Members of Knesset is not unusual compared to other systems of disciplinary rules. In any event, the Ethics Committee has broad authority to address matters that relate to the ethics of the members of Knesset, including a matter that does not have a

 

 

 

provision in the Rules of Ethics (Rule 24 of the Rules of Ethics). It follows, a fortiori, that the committee is authorized to address the violation of the general values which are anchored in the rules themselves.

 

35.          Among the general principles that are set in Rule 1A are the member of Knesset's obligations to act to advance the best interest of the State and preserve the dignity of the Knesset. The decision at hand is based on these obligations. Once I have reached the conclusion that the committee is authorized to address the violation of the general principles, it follows that it is, inter alia, authorized to address the duty to act for the benefit of the best interest of the State. As such, the Petitioners' argument that the Ethics Committee cannot decide who is acting for the benefit of the State, since such a decision is reserved for the voting public or that such a decision opens "a dangerous opening for political persecution" (paragraph 34 of the Petition), is in fact directed against the Rules of Ethics themselves and not towards the decision which is the subject of the Petition. In comparison, the Rules of Ethics in Britain include similar principles, including the duty of the members of Parliament to act in the interests of the nation as a whole (U.K. Code of Conduct for Members of Parliament § 4-7).

 

36.          In light of that stated above, the decision of the Ethics Committee was given within its authority. The question that remains is whether it is appropriate to intervene on the merits of the decision. On this level, the question that arises is whether the Petitioner's remarks constitute a violation of the Rules of Ethics, and if so – whether the sanction that was imposed due to such violation befits the severity of the offense. It shall already be clarified here that the Petitioners' arguments focused on the question of the Ethics Committee's authority to address the Petitioner's remarks, and not on the question of whether the committee was correct in its conclusion that ethical obligations were violated (compare: the Sheftel Case, paragraph 11 of my judgment). As mentioned, the Petitioners also argued that it is appropriate to intervene in the sanction that was imposed upon the Petitioner. However, in order to present a complete picture, I shall address the question of whether or not the Rules of Ethics were violated.

 

The Discretionary Level: Was the Ethics Committee's Decision that is the subject of the Petition Adopted Lawfully?

 

37.          The examination of the Ethics Committee's decision in the case at hand derives from the scope of the judicial review of the Ethics Committee's decisions (see: the Makhoul Case, on page 340). The scope of the judicial review of the Knesset's decisions changes in accordance with the essence of the decision under review: Legislative acts that were completed, internal parliamentary proceedings and quasi-judicial decisions (see: HCJ 652/81 Sarid v. The Chairperson of the Knesset, PD 36(2) 197 (1982); the Flatto Sharon Case, on pages 124-126)). When the Ethics Committee addresses complaints against members of Knesset, it is fulfilling a quasi-judicial duty (the Makhoul Case, on page 340; HCJ 7993/07 Legal Forum for Israel v. The Knesset's Ethics Committee, paragraph 6 of my judgment (April 30, 2009) (hereinafter: the "Legal Forum A Case"); HCJ 6280/07 Legal Forum for Israel v. The President of the State, paragraph 22 of Justice A. Procaccia's judgment (December 14, 2009) (hereinafter: the "Legal Forum B Case")).

 

 

 

 

In principle, the judicial review that is applied to the Knesset's quasi-judicial decisions is the same as the judicial review that is directed towards quasi-judicial authorities (see: ibid). However, in contrast to other quasi-judicial authorities, the Ethics Committee of the Members of Knesset, mainly addresses internal Knesset matters that relate to discipline and the ethics of its members. "[…] the essence of the activity of the Ethics Committee, in contrast, for example, from the removal of immunity which is performed by the Knesset Committee, is directed internally towards the Knesset, and in fact, in general its actions do not have any implications outside of the house of legislators" (the Makhoul Case, on page 343). Therefore, it was ruled that this Court's intervention in the decisions of the Ethics Committee should be in a more limited scope than the scope of intervention in the activity of other quasi-judicial entities in the Knesset (see: ibid). This reflects the Ethics Committee's broad scope of discretion, when handling matters of ethics and discipline of members of Knesset. The Court may intervene when the Ethics Committee's decision was reached in violation of law, or when at hand are material matters such as a violation of basic constitutional rights, the right to due process or violation of the  principles of natural  justice (see: the Legal Forum A Case, paragraph 6 of my judgment; the Legal Forum B Case, paragraph 22 of Justice A. Procaccia's judgment). In general, "[…] the more severe the infringement of the member of Knesset's basic rights, and the more the sanction for the  actions deviates from the proper extent, this more this Court will be willing to intervene" (the Makhoul Case, on page 344).

 

38.          As mentioned above, the Ethics Committee ruled that the Petitioner's remarks, in light of their content and sensitive timing, do not coincide with the best interest of the State and severely prejudice the public's trust in the Knesset and its image. Hence, the Ethics Committee ruled that the Petitioner's remarks violated Rule 1A(2) and Rule 1A(4) of the Rules of Ethics. For the sake of clarity, I shall requote these Rules verbatim:

 

 

General Values

 

1A. The member of Knesset – (1) […]

(2) Is a trustee of the public and it is his duty to represent the public that voted for him in such a manner that shall serve human dignity, the advancement of society and the best interest of the State;

(3) […]

(4)          Shall preserve the dignity of the Knesset and the dignity of its members, shall be devoted to fulfilling his duties in the Knesset, shall conduct himself in a manner that befits his status as a member of Knesset and shall act to foster public trust in the Knesset;

(5) […]

(6) […]

 

 

The language of Rules 1A(2) and 1A(4) is broad and leaves room for the Ethics

 

 

 

Committee's discretion regarding the manner of their application in specific cases. Such application must be in accordance with the objectives underlying these Rules. The Rules of Ethics reflect the principle that a member of Knesset, as an elected official, is also a trustee of the public. As such, he must make the public interest a higher priority compared to his personal matters. This also leads to the need to preserve the public's trust in the Knesset, and the Rules of Ethics are a means to realize this trust (On the importance of public trust in governmental authorities in general, see HCJ 6163/92 Eisenberg v. The Minister of Construction and Housing, PD 47(2), 229 (1993); and also see: HCJ 4921/13 OMETZ – Citizens for Good Governance and Social Justice v. The Mayor of Ramat Hasharon (October 14, 2013)).

 

39.          It is, therefore, my opinion that the committee's conclusions did not deviate from the broad range of discretion granted to it. The Petitioner's statements in the Interview and the Article were interpreted as a support of terror and the killing of civilians. In the case at hand it is not criticism of the government's policy during wartimes that is at issue and not even criticism of legislation in the Knesset or of other political maneuvers of the majority. The severity of the matter is enhanced considering the timing of the Petitioner's remarks, just a few days after the abduction of the teenagers, at a time when their fate was unknown, and in the midst of the "Protective Edge" operation. Additionally, the cumulative effect of the Petitioner's remarks, which were published in proximity to each other, must also be taken into consideration. Considering all of the circumstances of the current case – the Petitioner has gone too far. The Ethics Committee ruled that the Petitioner's statements amount to "legitimizing acts of terror against the citizens of the State", and that this is a violation of the Rules of Ethics. Indeed, words of support of terror of any kind, from either side, could severely prejudice the public's trust in the Knesset and its image. Therefore, and taking into consideration the nature of the Petitioner's remarks and their timing, it is inappropriate to intervene in the committee's conclusions that the Petitioner's statements severely harm the public's trust in the Knesset and its image, and violate Rule 1A(4) of the Rules of Ethics. The committee further ruled that the Petitioner's remarks violate rule 1A(2) of the Rules of Ethics that, inter alia, provides that a member of Knesset shall act to advance the State's best interest. It appears that the main objective of this rule is to guarantee that members of Knesset will act for the sake of the public interest, and shall not take advantage of their status and authorities for the sake of personal matters. In the case at hand, prima facie, the Petitioner's remarks were not intended to promote her personal affairs. Notwithstanding, it appears that both extreme remarks and actions which legitimize acts of terror against the citizens of the State do not coincide with the State's best interest (compare: the Miari Case, on pages 226-227). The Petitioners themselves agreed that statements that encourage and support violence are not legitimate. In support thereof, both in the Petition and in the hearing before us, the Petitioners provided a series of "explanations" of the Petitioner's remarks, and asked that we not perceive them as supporting terror. With respect to the Petitioner's statements regarding the abductors of the teenagers

– "they are not terrorists" – it was explained that the Petitioner's principle position is not to use the term "terror" in Israeli media. Since, according to her, the term "terror" is used in Israeli media only to describe Palestinian violence and not to describe Israeli violence against the Palestinian population. As to the Petitioner's Article, the Petitioner's intention when calling upon the Palestinians to turn to

 

 

 

"popular resistance" and to impose a "siege" on Israel, which was interpreted by the Ethics Committee as supporting a violent uprising against the State of Israel, was not explained in the Petition. In his oral arguments before us, the Petitioner's attorney explained that the Petitioner's intention in her Article was to encourage non-violent civil Palestinian resistance, and to express support for a "political siege" on Israel. In response to our questions, the Petitioner's attorney even stated that if the Petitioner's intention was to support a military siege, this would be problematic. However, these explanations were given retroactively, by the Petitioner's attorney, and not by the Petitioner herself. The Petitioner did not provide them to the Ethics Committee in her filed response and not even to the Knesset plenum in her appeal. It would have been appropriate for the Petitioner's explanations to be given in the framework of her response to the complaint that was filed to the Ethics Committee, and at least in the framework of her appeal of the committee's decision (compare: the Makhoul Case, on page 344). In any event, these explanations – which as mentioned were only given retroactively – are not sufficient to justify our intervention in the Ethics Committee's decision. The Petitioner's remarks were not published in the media with explanatory notes. The spirit of the statements, despite the Petitioner's later reservations, is that of identification with acts of terror and support of violence, as a means of attaining political objectives. In my opinion, in these circumstances it is inappropriate to rule that the Ethics Committee's decision that the Petitioner violated the Rules of Ethics was flawed in a manner that justifies our intervention. I shall clarify that this judgment only addresses the violation of the Rules of Ethics by the Petitioner, and no other matter.

 

40.          The Petitioners requested that we intervene in the sanction that was imposed upon the Petitioner, due to it being, according to them, discriminatory and disproportionate. We have ruled, by a majority of opinions, that such intervention is inappropriate in the circumstances at hand. I elaborated above on the fact that the Ethics Committee has broad discretion, and this is true also with regard to prescribing the sanction. However, the committee's broad authority is not to be interpreted as a permit to impose arbitrary sanctions. When imposing a sanction due to the violation of the Rules of Ethics, the Ethics Committee must take a variety of considerations into consideration. In general, the sanction imposed must be proportionate to the severity of the ethical offense committed by the member of Knesset (see: the Makhoul Case, on page 344). Subsequently, the committee must take the severity of the offense and the circumstances in which it was committed into consideration. As to remarks by members of Knesset, their content, subject matter and timing must, inter alia, be taken into consideration. A remark that slanders or humiliates individuals and publics does not carry  the  same consequence as another extraordinary and extreme remark (see also in this matter: the Ethics Committee's Decision "In the Matter of the Amendment of the Knesset Members Immunity, Rights and Duties Law, 5711-1951" (June 24, 2002)). Among all of its considerations, the Ethics Committee must also include the circumstances of the concrete member of Knesset who is being judged thereby, including the question whether he expressed remorse for his actions and his entire disciplinary past (for Ethics Committee decisions in which such considerations were considered, see, for example: The Knesset's Ethics Committee's Decision "In the Matter of Ziv Price, Eliezer Dvir and Pinchas Wolf against Knesset Members Ahmad Tibi, Taleb el-Sana and Jamal Zahalka" (June 22, 2004) (hereinafter: the

 

 

 

"Decision in the Matter of Knesset Members Tibi, el-Sana and Zahalka"); the Knesset's Ethics Committee's Decision "In the Matter of the Complaint by Knesset Member Limor Livnat, Minister of Education, Culture and Sport against Knesset Member Issam Makhoul" (December 21, 2004); the Knesset's Ethics Committee's Decision "In the Matter of the Complaint by Knesset Member Uri Ariel against Knesset Member Issam Makhoul" (July 19, 2005); the Knesset's Ethics Committee's Decision "In the Matter of the Complaints of Knesset Member Arie Eldad and Knesset Member Uri Ariel against Knesset Member Issam Makhoul" (July 26, 2005); the Makhoul Case, on page 344; and compare to Decision 64/18 of the Knesset's Ethics Committee "In the Matter of a Complaint by Knesset Member Danny Danon against Knesset Member Hanin Zoabi" (January 3, 2012) (hereinafter: "Decision 64/18")). It must also take the punishing standard in similar cases into consideration.

 

And From These General Principles – To the Case at Hand.

 

41.          In the circumstances at hand, we have not found it appropriate to intervene in the sanction that was imposed upon the Petitioner. The Ethics Committee has a broad range of proportionality and the Petitioner's remarks are especially severe, particularly – considering their timing. The severity of the statements is also reflected in the Attorney General's decision in the Petitioner's matter. While the Attorney General did not find justification to open a criminal investigation in this case, he did find it appropriate to state that his decision does not prevent taking actions against the Petitioner at an administrative or ethical level (also compare with: the Sufrin Case, on page 188). The Ethics Committee also took the impact of the decision and its accompanying sanction on the Petitioner's freedom of expression into consideration among the entire considerations, and emphasized the importance of the right to publicly criticize the government during times of war. The Ethics Committee indeed weighed relevant considerations from every direction, which were reflected in the reasoned decision. The Petitioner was given the right to be heard both before the committee and before the Knesset plenum, in the framework of her appeal. In addition, according to the data on the Knesset's website, the decision to reject the Petitioner's appeal was adopted by a significant majority, which also included members of Knesset from the opposition, and on the other hand, one of the members of Knesset from the coalition voted in favor of accepting the Petitioner's appeal. The proceeding in the case at hand was conducted while maintaining the Petitioner's procedural rights. The Petitioner's conduct during the procedure created the impression that she did not take it seriously. As mentioned, some of her explanations were first presented during oral arguments before us, by her attorney and not by her.

 

42.          Indeed the sanction that was imposed upon the Petitioner – being removed from sessions of the Knesset's plenum and its committees for the maximum possible period of time – is the most severe sanction in the existing scale of penalties. There was no dispute that this sanction had never in the past been imposed for the maximum period of time prescribed in the Immunity Law. However, in the circumstances of the case, the Petitioners' argument of discrimination and lack of proportionality, cannot be accepted. This is not the first time that the committee attributes significant severity to such remarks, remarks that encourage acts of terror or violence (see: the Decision regarding the "Martyrs Day", the Decision

 

 

 

regarding Supporting the Intifada). At the ethical level – which is meant, inter alia, to preserve the public's trust in the Knesset – remarks that express support of terror or violence against citizens, are no less serious than threats or slander that are directed at a specific sector or person. In this context it shall be noted that the majority of the decisions that were quoted in the Petition do not address remarks of this kind, and in any event not remarks during times of war or terror events. I have not ignored the judgments in the above-mentioned Szel Case and Karacsony Case, in which the European Court of Human Rights addressed fines that were imposed on opposition members of Parliament in Hungary, due to unethical conduct during sessions in parliament. At issue there, were acts of protest against a controversial bill (in the Szel Case) and acts of protest against the conduct of the majority party (in the Karacsony Case). These acts of protest included, inter alia, waving signs. The European Court ruled that indeed the fines that were imposed infringed the members of Parliament's right to freedom of expression in a disproportionate manner and ordered that they be cancelled; however the remarks in these cases are less severe than in the case before us. The Ethics Committee indeed has never before imposed a penalty of removal for the duration of six months, but penalties of this kind had been imposed for shorter periods of time – both for remarks and for actions (see, for example: Decision 7/19 of the Knesset's Ethics Committee "In the Matter of a Complaint by the Chairperson of the Knesset against Knesset Member Meir Porush" (November 13, 2013) (removal from Knesset plenum sessions for two weeks); Decision 66/18 of the Knesset's Ethics Committee "In the Matter of a Complaint by the Chairperson of the Knesset against Knesset Member Anastasia Michaeli" (January 10, 2012) (removal from sessions of the Knesset plenum and its committees for a month); The Decision in the Matter of Knesset Member Eldad (removal from sessions of the Knesset plenum and its committees for one day); The Decision in the Matter of Knesset Member Tibi, el-Sana and Zahalka (removal from sessions of the Knesset plenum and its committees for two days)). An examination of the Petitioner's entire disciplinary past indicates that her remarks have been discussed by the Ethics Committee many times. In some of the cases it was found that she did not violate the Rules of Ethics or that it is inappropriate to impose a sanction for her remarks, and in some of the cases various penalties were imposed upon her (see, for example: Decision 64/18; Decision 55/18 of the Knesset's Ethics Committee "In the Matter of Complaints against Knesset Member Hanin Zoabi due to her Participation in the Flotilla to Gaza in May, 2010" (July 18, 2011); Decision 52/18 of the Knesset's Ethics Committee "In the Matter of a Complaint by the Legal Forum for Israel against Knesset Members Hanin Zoabi and Jamal Zahalka" (July 5, 2011)). I shall at this point note that in my opinion no weight should be attributed to the mere filing of complaints against a member of Knesset, as in the case at hand. According to the law, any person may file a complaint against a member of Knesset (Section 1of the Knesset Members Ethics Procedure (Complaints)). Many complaints are not accepted and many are dismissed in limine. Granting weight to complaints that were filed – even if they were not found to have any substance – could lead to abuse of this tool and to unjustified harm to members of Knesset. However, this consideration did not receive significant weight in the decision which is the subject of our discussion.

 

43.          I shall not deny that I was concerned by the "quantum leap" in the sanction that was imposed in this case. As may be recalled, the sanction of removal was added

 

 

 

to the Immunity Law in 2002, and as such, in general, should be imposed gradually (see and compare: Criminal Appeal 1042/03 Meretzplas Limited Partnership Ltd. (1974) v. The State of Israel PD 58(1) 721, 731-732 (2003); Criminal Appeal 7936/13 Levy v. The State of Israel, paragraph 46 of Justice N. Solberg's judgment, paragraph 2 of my judgment (December 16, 2014)). However, from a practical perspective, we are not dealing in this case with the Petitioner's complete removal from the Knesset's activity for six months. The summer recess, during which the Knesset operates in a limited format, took place during the first half of the removal. During the recess the Knesset plenum convenes only in extraordinary cases and Knesset committees also convene less frequently. As such, during the recess the two committees in which the Petitioner is a member convened only five times (but it shall be noted that meetings of other committees were also held), while according to the Knesset's website, during the month of November, these committees held more than twenty meetings. Furthermore, there was an elections recess during the seven weeks that remained of the period of removal, from the time of the hearing before us that was held on December 9, 2014, and the judgment that was given the following day. Therefore, the practical significance of intervening in the sanction in these circumstances is miniscule, if at all existent. I shall emphasize that in any event, the Petitioner's right to vote was not denied, and furthermore, that the sanction does not prevent the Petitioner from using parliamentary tools, such as filing bills, proposals or questions. At issue also is not a suspension from the Knesset (compare: the Flatto Sharon Case, on page 126). Considering all of the reasons mentioned above, I have not found justification for our intervention in the broad discretion granted to the Ethics Committee.

 

44.          Epilogue: The Petition is denied without an order for expenses, as stated in our judgment dated December 10, 2014.

 

The President

 

Justice E. Hayut

 

1.            I concur with the opinion of my colleague the President, both with regard to the question of the Ethics Committee's authority to impose sanctions against the Petitioner for the remarks which are the subject of the Petition and with regard to the conclusion that the authority in the circumstances at hand was exercised lawfully. I also share my colleague's remarks (paragraph 43 of her opinion) regarding the excessive severity of the sanction that was exercised in the case at hand. However, like my colleague, I am of the opinion that it is inappropriate to intervene since in the case at hand the severity of the sanction has de facto been mitigated to a considerable degree, given the fact that the majority thereof occurred during the summer recess – and this was taken into consideration by the committee – and during the election recess – even though this was not known at the time the sanction was imposed.

 

Due to the matters that emerged in this Petition, the importance of which cannot be overstated, I have found it appropriate to add two short comments: one – relates to not exposing the minutes of the Ethics Committee and the material presented thereto to be reviewed by the Petitioner despite her request in this

 

 

 

matter, and the second – relates to limiting the freedom of political expression of an elected official who represents a minority group in society.

 

The  Refusal  to  Deliver  the  Minutes  of  the  Committee  and  the  Material Presented thereto to the Petitioner's Review

 

2.            My colleague elaborated in her opinion on the fact that the Petitioner approached the Ethics Committee and requested, "in order to file a petition to the High Court of Justice", to review the minutes of its meetings and the material presented thereto in preparation for it reaching a decision, but was refused. The Knesset's legal counsel reasoned the refusal by referring to Rule 21 of the Rules of Ethics for Members of Knesset, which provides that the ethics proceedings, including the documents and the minutes, are privileged, and are not to be published except with the committee's written permission, and subject to the terms it shall prescribe. The legal counsel further stated in his response to the Petitioner that while the use of material and minutes of the committee's meetings for the purpose of legal proceedings is one of the exceptions the committee recognizes in this context, it is his position that this should not include a legal proceeding that is meant to challenge the decision of the Ethics Committee itself, due to the concern that this could adversely affect the committee members' ability to properly fulfill their duties. Finally, the legal counsel stated in his response to the Petitioner that if the Petition shall be filed, the minutes of the committee's session shall be delivered for the Court's review only. And indeed, immediately following the filing of the Petition, the Respondents delivered the minutes of the committee's session, in a sealed envelope to be reviewed only by the members of the bench.

 

During the hearing that was held before us on December 9, 2014, the Petitioners' attorney informed us that in order to make the hearing more efficient and to move it forward, he does not insist on the arguments he raised in the Petition regarding the refusal to provide him with the minutes of the committee's session and the material that had been presented thereto, while reserving his arguments in this matter. As such, my colleague did not find it necessary to refer to this matter in her opinion. Without setting rules in the matter, I find it appropriate to note that in my opinion the Knesset legal counsel's  reasons for refusing to make the minutes of the committee's session and the material that had been presented thereto available to the Petitioner, create non-negligible difficulties, in light of the distinction he made between general legal proceedings and legal proceedings that are intended to challenge the disciplinary decision that was adopted by the committee. It appears to me that not making the minutes and the material available to the Petitioner in these circumstances significantly impairs her ability to effectively challenge the decision and therefore it appears to me that the position presented by the Knesset's legal counsel in this context should be reexamined. This Court has elaborated in the past on the intensity of an individual's interest to receive detailed information  regarding a proceeding – disciplinary or other – in which a decision regarding him has been reached, especially in the context of a judicial proceeding against which he wishes to take action, so as to allow him to exercise his right to due process. In HCJ 844/06 Haifa University v. Oz (May 14, 2008) it was ruled in this context as follows:

 

"Whatever the extent of concern that the functioning of the

 

 

 

university examination committees will be impaired, that concern is subordinated to the need to allow the employees who were harmed by the conclusions of these committees to defend themselves against that which was attributed to them and to prove their argument that the decision regarding them was not lawfully adopted… The underlying rationale of this approach is that there is a significant social interest in giving the employees the possibility of exhausting their rights, and the interest of the efficient functionality and existence of such examination committees, however important it may be, does not in and of itself justify recognizing the material as privileged. This is certainly relevant when, as in the case at hand, there was a proceeding before a judicial instance which is addressing a question of the legal validity of the petitioner's decisions regarding changing the terms of employment of respondent 1 and terminating the employment of respondents 2 and 3. In this context, the interest that exists that the said examination committees be efficiently functional is subordinated to the respondents' right to due legal process, in the framework of which they shall be granted the possibility of reviewing all of the material relevant to establishing the arguments against terminating their employment in the School of Theatre" (the Oz Case, paragraph 18, see also: Permission for Civil Appeal 7568/00 The State of Israel – Civil Aviation Administration v. Aharoni, PD 55(5) 561, 565

(2001)).

 

It is my position that the intensity of this interest is certainly not weakened when at hand is a disciplinary proceeding that is being taken against a member of Knesset, and in this context it is not superfluous to add that the proper balance between the need to preserve the proper functionality of the Ethics Committee – the importance of which was elaborated upon in the Knesset's legal counsel's response – and the Petitioner's right to due process, can be obtained by way of stipulating terms and preventing the exposure of certain details, for example with regard to the identity of the speakers in appropriate cases, as per the committee's authority pursuant to the end of Rule 21 (see and compare: HCJ 7793/05 Bar- Ilan University v. The National Labor Court in Jerusalem, paragraph 20 (January 31, 2011); Administrative Petition Appeal 6013/04 The State of Israel

– Ministry of Transportation v. The Israel News Company Ltd. PD 60(4) 60, 96 (2006)). In any event, once the Petitioners did not insist on their argument in this matter, then, as my colleague chose, the ruling on this matter can be left for another time.

 

 

 

Limiting  the  Freedom  of  Political  Expression  of  an  Elected  Official  who Represents a Minority Group in Society

 

3.            In her opinion, my colleague elaborated on the distinguished and special status of the freedom of political expression in the order of constitutional rights, particularly when at hand is a member of Knesset who represents a minority group. This position is grounded in the past rulings of this Court, in HCJ 11225/03 Bishara v. The Attorney General, PD 60(4) 287, 336-338 (2006), and in the ruling of the European Court of Human Rights (Szel v. Hungary, 44357/13 (2014) at para 69; Karacsony v. Hungary, 42461/13 (2014) at para 72) to which my colleague referred. See also Tarlach Eoghan McGonagle, Minority Rights and Freedom of Expression: A Dynamic Interface (PhD Thesis, University of Amsterdam, 2008) for the special importance of protecting the freedom of expression of minority groups, in general, and the duty imposed on the state to restrain the infringement of this freedom of expression and to take measures to allow it to be realized.

 

However, the attempt to define what a "minority group" is, is not always an easy task (see and compare for example: Michael M. Karayanni, Groups in Context: An Ontology of a Muslim Headscarf in a Nazareth Catholic School and a Sephardic Ultra-Orthodox Student in Immanuel 1, 42 (January 12, 2015). Available at SSRN:http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2548548; Civil Appeal 466/83 Shahe Ajemian, Archbishop in the Armenian Church in Jerusalem v. Archbishop Yeghishe Derderian, PD 39(4) 737, 747 (1986)), and it should also be noted that at times there can be situations in which it appears that it is actually the freedom of expression or other freedoms of the majority that are at risk and need steadfast protection against being infringed upon by certain minority groups. In any event, the freedom of political expression of an elected official, as well as an elected official who represents a minority group, is not absolute, but rather, as any other constitutional right, is relative, and it is not a freedom that is free of any limitations whatsoever. Like my colleague, I am of the opinion that in the case at hand, the Petitioner's remarks crossed the line and exited the zone worthy of protection in the name of freedom of political expression, even considering the fact that she represents a minority group in Israeli society. The Petitioner's statements in the Interview, regarding the abduction of the teenagers, reflect understanding and legitimization of the atrocious act of abduction, and identify with those who committed the act, whom, according to her, should not be referred to as "terrorists". The words the Petitioner wrote in the Article that was published on various websites are no less severe from the perspective of the Rules of Ethics that apply to someone who serves as a member of the Israeli Knesset. In that same Article, the Petitioner went so far as to hand out advice as to the effective ways in which it is possible to fight the State and to harm it. Inter alia, it was written in said Article: "We must abandon the lethal trinity and declare a popular resistance instead of security coordination and impose a siege on Israel instead of negotiating therewith". These words, when voiced by a person who is a member of the Israeli Knesset, justify the steps taken by the Ethics Committee, because they illustrate that what the Petitioner had in mind when writing that Article was neither "the advancement of society and the best interest of the State" nor "fostering public trust in the Knesset". The Petitioner advocates to cease the coordination and the

 

 

 

negotiations between Israel and the Palestinians, which according to her are nothing but part of what she refers to as the "lethal trinity" and instead of negotiations and coordination she calls for popular resistance and imposing a siege on Israel. The Petitioner's attorney's attempt to retroactively argue that this is not a call for violence, is perplexing, inter alia, given the manner the term "popular resistance" is de facto implemented in the reality of our lives.

 

It is important to emphasize that remarks, and particularly remarks by elected officials, which constitute criticism and even extremely harsh criticism, of government policy are completely legitimate, and this is true with respect to remarks that emphasize the suffering of the other party to a conflict and which exhibit empathy towards and understanding of such suffering. This Court elaborated on this in the early days of the State, when stating that the difference between an autocratic regime and a democratic regime is marked by the possibility that is granted to the representatives chosen by the people to scrutinize the acts of government at any time "Whether to cause such acts to be rectified and create new arrangements in the State, or to bring about the immediate termination of those 'governing' or their replacement by others when comes the elections" (HCJ 73/53 'Kol Ha'am' Company Ltd. v. The Minister of Interior PD 7(1) 871, 876 (1953)). However, as mentioned, the Petitioner's remarks, for which the Ethics Committee deemed it appropriate to apply sanctions against her, completely deviated from this legitimate category, even if one takes into consideration the special caution that must be  applied  when dealing with the freedom of political expression of an elected official who represents a minority group.

 

4.            My colleagues emphasized the excessive severity that accompanies  the Petitioner's remarks given that they were made during times of war and crisis. I am of the opinion that it is inappropriate to set different criteria for the protection of the freedom of expression during times of crisis compared to those that should be applied during times of calm. However, it is clear that the likelihood and feasibility of harming other essential interests could be of different intensity during times of crisis. President A. Barak elaborated on this in HCJ 7052/03 Adalah – The Legal Center for Arab Minority Rights in Israel v. The Minister of Interior, 61(2) 202 (2006), when he stated that:

 

"Indeed, Israeli constitutional law has a uniform approach to human rights during times of relative calm and during times of enhanced war. We do not recognize a sharp distinction between the two. We do not have special balancing laws for times of war. Of course, human rights are not absolute. They can be limited during times of calm and times of war… During times of war the likelihood that damage to a public interest shall occur is greater, and the harm to the public interest is more intense, and as such it is possible to limit rights in the framework of the existing criteria… Indeed we do not maintain two systems of rules or balances, one for times of calm and other for times of terror. There is a uniform set of laws and balances, which applied both during times of calm and times of terror (the Adalah Case, paragraph 20; see

 

 

 

also: Abrams v. United States 250 U.S. 616, 627-628 (1919)).

 

Based on the grounds listed by my colleague the President, to which I added a few comments, I am of the opinion that the Petition is to be denied.

 

Justice

 

Deputy President E. Rubinstein

 

A.            I concur with the comprehensive reasons written by my colleague, the President.

 

B.            I shall add some brief remarks: Section 1(A1) of the Knesset Members Immunity, Rights and Duties Law, 5711-1951 is somewhat of a mirror image of Section 7A of the Basic Law: The Knesset which was adopted a short while earlier and defines when a list or a candidate shall be prevented from participating in the elections to the Knesset.

 

C.            Section 7A of the Basic Law: The Knesset, which was adopted on the 4th of Iyar, 5762 (May 15, 2002) (Sefer Hachukim 5762, 410) prevents a party or a candidate from participating if their goals or actions "explicitly or implicitly include one of the following: (1) denial of the existence of the State of Israel as a Jewish and democratic state; (2) incitement to racism; (3) support of an armed struggle by an enemy state or of a terrorist organization against the State of Israel".

 

D.            Section 1(A1) of the Immunity Law which was adopted on the 13th of Av, 5762 (July 22, 2002) (Sefer Hachukim 5762, 504) excludes that which is listed below from the material immunity of Section 1(A1) of the law which addresses a vote, an expression of opinion or an act while fulfilling the position or for the sake thereof – and we shall already take note of the similarity to Section 7A of the Basic Law:

"(1) Denial of the existence of the State of Israel as the state of the Jewish people.

(2)          Denial of the democratic nature of the State;

(3)          Incitement to racism due to color or belonging to a race or ethnic national origin;

(4)          Support of an armed struggle by an enemy state or of acts of terror against the State of Israel or against Jews or Arabs due to their being Jewish or Arab, in Israel or abroad."

 

E.            It is not necessary to conduct a meticulous comparison between Sections 1(A1) of the Immunity Law and 7A of the Basic Law in order to receive the impression that we are dealing with provisions that are comparable and correspond to each other. The legislators of Section 1(A1) had the model of the Basic Law before them; see the bill that was filed by Knesset Members Eliezer Cohen, Zvi Hendel, Michael Nudelman and Nissim Ze'ev, Hatzaot Chok 5762, 210, which explicitly addresses this. I shall note that I reviewed the discussions in the plenum in the first reading on January 29, 2002 (in the second and third readings on May 27, 2002, no real discussion was held) and the matters discussed were split between left and right; there was also a reservation to the bill by Minister Dan Meridor. In

 

 

 

any event, the amendment was legislated.

 

F.            In light of the above, it is clear that we are dealing with the core of the Israeli parliamentary duty to which the members of Knesset pledge allegiance pursuant to Section 15(a) of the Basic Law, as follows: "I pledge myself to bear allegiance to the State of Israel and faithfully to fulfill my mandate in the Knesset"; Knesset Member Zoabi also pledged this when declaring "I Pledge" (Section 1(c) of the Knesset Law, 5754-1994). We are not dealing with a marginal matter, but rather one which is undoubtedly at the root of being a member of Knesset; the legislators of Section 1(A1) of the Immunity Law – as mentioned – viewed the matters therein as drawing sustenance from Section 1A of the Basic Law. This Court applied a very restrained approach in the context of Knesset Member Zoabi's candidacy to the Knesset with regard to her compliance with the terms of Section 7A of the Basic Law: The Knesset. Until now an extremely lenient approach was preferred with respect to her, and I shall only mention Election Approval 9255/12 The Central Election Committee for the 19th Knesset v. Knesset Member Hanin Zoabi (judgment dated December 12, 2012, reasons dated August 30, 2013); where President Grunis spoke (in paragraph 34) of Knesset Member Zoabi's activity which "comes very close to the grey area of which Section 7A warns and which it is meant to prevent", and of evidence that came close "to that 'critical mass' of evidence that justifies disqualification" – but the line was not crossed. Additional justices on the bench in that judgment expressed a similar spirit, but the judicial policy of narrowly and stringently interpreting the causes in Section 7A of the Basic Law as being designated for "most extreme cases which cannot possibly be dealt with using ordinary democratic tools" (paragraph 35), was upheld. In the context of the elections, a non-excluding approach was preferred, and subsequently the judicial and democratic tolerance was flexed to its limits. I mention this because ultimately the legal significance is that once Knesset Member Zoabi was elected to the Knesset and pledged allegiance to the State, she is in her position by right and not by grace; see Nathan Alterman's unforgettable poem "The Rebuke to Tawfik Toubi" (The Seventh Column A 276) of the 1950's (also quoted in my article "On Equality for Arabs in Israel" in my Netivei Mimshal UMishpat book (5763- 2003), 278), in which, inter alia, it was said "Such is the nature of democracy: Her servants owe gratitude to no person; In part it may not be easy, but if it shall not go without saying, it shall not be understood by us at all". Often the things that Knesset Member Zoabi says and does are not easy for many Israelis, but they are to be considered "the choosing of the lesser of two evils" (as the words of the Mecelle), and her parliamentary right is in place.

 

G.           We now approach the Rules of Ethics, which are an internal parliamentary layer, and in my opinion should be interpreted both based on their content and taking into consideration the general background of a member of Knesset's obligations, on the one hand, and his or her immunity and the exceptions thereto, on the other hand. Particularly due to the broad material immunity, the Rules of Ethics are the little that can be done to restrain deviations, "a pressure release valve" to maintain a framework of parliamentary norms. My colleague listed the general values underlying the Rules of Ethics (in paragraph 23), and in the matter at hand, we are dealing with Rule 1A(2) which designates the member of Knesset as "a trustee of the public and it is his duty to represent the public that voted for

 

 

 

him in such a manner that shall serve human dignity, the advancement of society and the best interest of the State;" and with Rule 1A(4) pursuant to which the member of Knesset shall "preserve the dignity of the Knesset and the dignity of its members, shall be devoted to fulfilling his duties in the Knesset, shall conduct himself in a manner that befits his status as a member of Knesset and shall act to foster public trust in the Knesset". Indeed, these rules address  fundamental values, but, similarly to my colleague (paragraph 32), I do not accept the argument that they do not have an independent standing; in my opinion they are the soul of the Rules of Ethics, they are what gives them their real essence and their proper application.

 

H.            As my colleague mentioned (paragraph 26), the parties to this Petition assumed that the Petitioner's remarks which are the subject of the complaints are covered by the material immunity by virtue of Section 1(a) of the Immunity Law, which – as mentioned – grants immunity "due to voting or due to expressing an opinion orally or in writing, or due to an act performed – in or out of the Knesset – if the vote, the expression of the opinion or the act were in the framework of fulfilling his position, or for the sake of fulfilling his position, as a member of Knesset". I shall take the liberty to doubt whether Knesset Member Zoabi's words which we are addressing meet the criteria of Section 1(A1)(4) which excludes "support of an armed struggle by an enemy state or of acts of terror against the State of Israel or against Jews or Arabs, due to their being Jewish or Arab, in Israel or abroad." However, even with the lenient assumption that my colleague described, it is clear that there is nothing preventing discussing Knesset Member Zoabi's remarks at an ethical level.

 

I.             We shall briefly review the actual remarks.

 

J.             First of all, the interview on June 17, 2014, five days after the abduction of the three teenagers Naftali Frenkel, Gil-Ad Sha'er and Eyal Yifrah, may G-d avenge their deaths. According to Knesset Member Zoabi, the abductors, the abductors of innocent teenagers, "are not terrorists… even if I do not agree with them, they are people who do not see any opening…, and they are forced to use these means". It is known that throughout the world and in international law there are disputes as to the definition of terror, and it has already been said that a freedom fighter for one is a terrorist for the other. But is there a humane human in their right mind who would not deem the abduction of the teenagers and their cold blooded killing anything other than terror? Must the national liberation for the Palestinians, for which Knesset Member Zoabi is wishing, pass through despicable crimes of terror? And the stretched explanation that was voiced, that her statements were said because terror is only attributed to Arabs and not to Jews cannot hold water, inter alia, because acts of terror by Jews are on more than one occasion referred to as "Jewish Terror", and an simple surfing on the internet with such headline will prove this. Terror is terror is terror, regardless of who performs it, Jews, Arabs or others. Hence, can it be said, in this case, that the value of a member of Knesset's duty to serve human dignity, as appears in Rule 1A(2), was not violated? – There is no greater human dignity than the sanctity of life itself; "There shall be no violation of the life, body or dignity of any person as such." (Section 2 of the Basic Law: Human Dignity and Liberty, and see also Section 4 of the Basic Law).

 

 

 

 

K.            Secondly, the call in the article dated July 13, 2014, to the Palestinians "… to impose a siege on Israel instead of negotiating therewith". These words should not be read as a sacred text with multiple interpretations, but given the context of the matters which is "(Israel's – E.R.) detestable trinity: the fence, the siege and the coordination", it is extremely difficult to interpret the call to "impose a siege on Israel" as only a "political siege" (not that such a call in and of itself would be permitted and legitimate), but rather as an armed siege. If we shall read these statements in light of the "State's best interest" chapter in Rule 1A(2) of the Rules of Ethics, we shall ask ourselves whether a call to impose a siege on the State can be in the "State's best interest" – and this is not a political slogan of "saving Israel from itself", which some of Israel's "friends" raised in the past, but, as my colleague stated, rather an unexplained statement – which simply means joining forces with the State's enemies. The answer cannot be positive; and the forced interpretation that was given, even though it was not from the member of Knesset but rather from those supporting her, is not convincing. In light of all of that stated above, one cannot cast a doubt regarding the violation of the Rule of Ethics.

 

L.             Indeed, Knesset Member Zoabi is from a minority in Israel – and it is appropriate to apply interpretation that takes this into consideration and expands the limits of patience and tolerance; but in the case at hand, as my colleague also stated (paragraph 39) it simply went too far. Of course, this is enhanced by the timing, during the search for the teenagers, while the sounds of the cries of the mothers and fathers were heard, and during severe combat – the member of Knesset was undermining any common ground that exists and should exist among the entire Israeli public, without any explanation which could, even at a stretch, be acceptable.

 

M.          One must not criticize the members of the Central Ethics Committee, who, when dealing with the ethical level, did not take the approach of those three monkeys who do not hear, do not see and do not speak, since at hand are the core and essence of principle, central ethical obligations. Therefore, I agree with  the rulings of my colleague, the Deputy President, for example in paragraphs 31-32, 35, 39, in the principle questions that were addressed here. At issue is not the matter of the limits of the freedom of expression, which the State of Israel maintains on a very high level, as emerges from the rulings of this Court – and I personally doubt whether the type of statements that underlie this case would even be acceptable in a country that maintains ultimate freedom of expression such as the United States, pursuant to the First Amendment of its constitution. The matter at hand is the ideological base that is – or should be – shared by all members of Knesset, and which in the absence thereof – there is no survivability. I shall re-emphasize that in my opinion one of the more burdening parts of the story, as also emerges from the words of my colleague, in addition to the statements themselves, is the explanations – or the lack thereof – with respect to the remarks; it is clear that Knesset Member Zoabi's explanations are extremely stretched, and her attorney had to, skillfully, try to fill voids, at times in an impossible manner, as is stated in the Bible: "Wilt thou put out the eyes of these men?" (Numbers, 16, 14).

 

 

 

N.           Finally, as to the sanction, which ultimately ended up being more in the symbolic dimension than one of essence or substance, since, as my colleague described, it was eroded between a recess and elections, and therefore it clearly had a weak impact.

 

O.           Upon reading the opinion of my colleague, Justice Hayut, in paragraph 2, regarding the delivery of the minutes of the Ethics Committee's session to the Petitioner, I shall request only to state that we are dealing with a very delicate balance, which is intended to protect the committee members' freedom to express themselves freely on the one hand, and fairness towards the injured member of Knesset, on the other hand. As my colleague mentioned, this matter has emerged in other contexts as well. The difficulty is that even when the exposure of certain details, such as the identity of the speakers, is prevented, it is easy to comprehend that the matter still remains complex, since in a small committee (as opposed, for example, to the other Knesset committees which are large), anyone who is able to figure things out will not have difficulty identifying the speakers. Since the matter remains to be further addressed, it does not have to be ruled upon now.

 

P.            Further to the remarks of my colleague, Justice Melcer, I shall concur with his statements regarding the relationship between law and ethics. It is known that ethical duties also apply to us as judges. The Jewish Law also addresses the distinction between ethics and the letter of the law, and as we – Judge Eran Shilo and myself – wrote in an article that is scheduled to be published in the Zvi Tal Book, "Judicial Ethics in Jewish Law", "The rules of ethics are rules that professionals took upon themselves, as opposed to the law – which is externally imposed upon them, as upon the entire public"; Furthermore – "The distinction between ethics and law is what allows the judge, in circumstances that justify it – to exercise discretion with respect to the norms that are prescribed, knowing that the letter of the law that guarantees a just trial shall not be prejudiced". In the case at hand, we are dealing with the legislator itself, who also prescribes the law and not only the rules of ethics, and therefore we can adjust that which is stated and say that the Rules of Ethics are directed internally, towards the sphere of parliamentary conduct, while the law that is legislated by the Knesset is directed externally, towards everyone. However the ethical matters in the Knesset are obviously uniquely public due to the institution's status and importance, and they are meant to draw behavioral lines so that the legislator shall know its own limits, not only through constitutional review but also within the boundaries of conduct that befits those who represent the entire Israeli public.

 

Q.           My colleague, Justice Melcer, addressed the pledge of allegiance, similarly to my words in paragraph F above. It is known that the wording of this declaration is defined and a member of Knesset is not permitted to add anything thereto (HCJ 400/87 Kahane v. The Chairperson of the Knesset PD 41(2) 729); The declaration (Section 15(a) of the Basic Law: The Knesset) addresses "Bearing allegiance to the State of Israel and faithfully fulfilling my mandate in the Knesset"; similarly, the President of the State is also required to "bear allegiance" (Section 9 of the Basic Law: The President), as are the Prime Minister and ministers (Section 14 of the Basic Law: The Government), judges (Section 6 of the Basic Law: The Judiciary – which was applied as early as in 5708 (my book The Judges of the Land (5741-1980), 79); religious judges (Section 10 of the

 

 

 

Religious Judges law, 5715-1955); Qadis (Section 7 of the Qadis Law, 5721- 1961), and Madhhab Qadis (Section 13 of the Druze Religious Courts Law, 5722-1963), as well as the State Comptroller, pursuant to Section 9 of the Basic Law: State Comptroller. In my opinion, by pledging this allegiance those filling these positions express the expectation of an extra degree of loyalty by any personality filling a governmental position, beyond the basic loyalty imposed by citizenship (see Section 5(c) of the Citizenship Law, 5712-1952, in which a person being naturalized pledges to be a "loyal citizen". The pledge of allegiance is a deep moral instrument, and as stated, is at the root of being a member of Knesset, and is a common thread that connects all holders of senior positions in the government system, in the framework of their mandate. One must either be a great believer or greatly naïve, to be of the opinion that Knesset Member Zoabi's statements which we are addressing here, constitute bearing allegiance.

 

R.            As to the position of my colleague, Justice Joubran: There is no dispute regarding the centrality of freedom of political expression  and the significance of the material parliamentary immunity, even what at issue is the expression of outrageous opinions. This is true for all and especially in the case of minorities from various sectors. This stems from us being a Jewish and democratic state, and from the legacy of the prophets of Israel, and as prophet Isaiah said (58, 1) "Cry aloud, spare not, lift up thy voice like a horn, and declare unto my people their transgression, and to the house of Jacob their sins."; see also the principle paragraph in the Declaration of Independence which establishes the State of Israel on "the foundations of freedom, justice and peace as envisaged by the prophets of Israel"; and Section 1 of The Foundations of Law Law, 5740-1980. My colleague is of the opinion (paragraph 17) that also when dealing with ethics it is necessary to apply restraint, and I especially agree when dealing with "politicians who are judging politicians", in the Knesset's Ethics Committee, when – without heaven forbid insulting anyone – there is an inherent concern regarding political considerations being involved in the material considerations. However, we are dealing with ethics in which severity of sanctions do not get to the root of the matter (and in the matter at hand has been wondrously eroded), and with a message which has already been described in the various opinions here.

 

S.            Where do I disagree with my close colleague Justice Joubran? In laying down the line. For example, my colleague (paragraph 19) distinguishes between one who "acted not for the advancement of the best interest of the State" and one who "did not act to advance the best interest of the State", and he is of the opinion that "neutral actions by members of Knesset which on the one hand do not advance the best interest of the State and on the other hand do not harm it, shall not be included in the prohibition". Even if such distinction is appropriate, and I shall not address this (but see the words of our colleague Justice Melcer, in paragraph 7), this is not what is at issue, since the words of Knesset Member Zoabi which we are addressing are blatantly not in the best interest of the State. According to Justice Joubran (paragraph 20), Section 1A(2) of the Rules of Ethics, which imposes upon a member of Knesset to act "in a manner that shall serve human dignity, the advancement of society and the best interest of the State", should be interpreted in a liberal manner, and its sanctions shall be limited to extreme cases. In my opinion, even in the most far reaching liberal interpretation, calling for the

 

 

 

imposition of a siege on your own state and supporting terror cannot – with all due respect – be interpreted with common sense and in the eyes of an ordinary person – as neutral, certainly not as an act "in the State's best interest". I am sorry, but this is nothing other than a blatant an act against the State's best interest. There are ethical boundaries and I shall not address the question of the boundaries of freedom of expression, and the manner of dealing with expressions that are not only provocative but tap existential roots.

 

T.            In summation: The (Middle) Eastern culture to which all of us, each sector, person and style, belong, attaches great importance to honor. Ethics is part of the values and manners between people. In the Jewish world this shall be referred to in various contexts as the theory of values (ethics). I shall quote statements that I had the opportunity to write in my article "The Equality of Minorities in a Jewish and Democratic State" Zehuyot 3 (5773-2013), 140. It is said there (on page 142) that "Mutual respect between Jews and Arabs in Israel is necessary. This is emphasized due to the importance that the culture surrounding us, the culture of the (Middle) East, attributes to the matter of honor, a culture that is expressed in words such as 'Sharaf (honor) and 'Kilmat Sharaf' (word of honor)" and hereinbelow (pages 143-144) "I myself perceive honoring my fellow-person, first and foremost as something natural that stems from within oneself, … this is also the case, mutatis mutandis, of course, with respect to matters related to the relations with Israeli Arabs within" and further on (page 145) "the principle prescription for relationships between the majority and minority in the State of Israel is complex – it is a matter of awareness and insights, which call for reciprocity. It includes Jewish insight as to the need for respect towards the Arabs and an ongoing, relentless, effort, to amend the gaps in equality in all spheres – as mentioned, I see myself as one of the first who was willing to stand up for the task of amending and bridging the gaps. However, awareness and insights are also necessary from the other side, among some of the Arab leadership  in Israel… it must recognize and understand that the objective of the struggle must be equality, and the Jewish population cannot be concerned that at hand is a struggle against the essence of the State of Israel as a Jewish and democratic state". Indeed, this was said in the context of the state being Jewish and democratic, but they  are  relevant also  when referring to terror.  When  three families and an entire country were worried about the fate of teenagers who had been abducted (and murdered) by evils, according to Knesset Member Zoabi, they are not terrorists, an ordinary person shall then ponder whether to accept her stretched explanations, and in my opinion the answer is crystal clear. This is also true with respect to the "siege sophistry", and no more words are needed.

 

Deputy President

 

Justice H. Melcer

 

1.            I concur with the exhaustive and measured judgment by my colleague, President

M. Naor.

 

However, due to the importance of the matters, I take the liberty to add a few words regarding the distinction between the prohibition of law and the prohibitions of ethics, since in the case before us the matter that emerged was

 

 

 

whether Knesset Member Hanin Zoabi violated the Rules of Ethics for Members of Knesset (hereinafter, also: the "Rules of Ethics") and whether judicial intervention in the sanctions that were imposed thereupon by the Knesset's Ethics Committee, is appropriate. I shall briefly address below the said distinction, and its derivatives and implications.

 

2.            Prof. Asa Kasher, in his article Professional Ethics (published in Ethical Issues for Professionals in Counseling and Psychotherapy, ed. Gaby Shefler, Yehudit Achmon, Gabriel Weil, pages 15-29 (Y"L Magnes – 5763-1993)) distinguishes between ethics and law using the terms of shelf and threshold, and clarifies that along the range of possible courses of actions:

 

"There appear to be two lines, one at the top of the ladder… even if not at its very top, and one at the bottom of the ladder… even if not at its very bottom. The top line shall be called the 'shelf'. In this picture it represents ethics. The bottom line shall be called the 'threshold'. In the current picture it represents the law.

These lines, the 'shelf' and the 'threshold' divide the entire range into three natural parts: the segment from the 'shelf' and upwards, the segment between the 'shelf' and the 'threshold' and the segment below the 'threshold'. It is important to understand the essence of each of these three segments, in order to properly understand the relationship between the world of ethics… and the world of law…

The 'shelf' represents the professional ethics, the practical ideal of professional conduct. It is the 'shelf' of proper conduct… an action at the height of the 'shelf' or above it is proper conduct, as it is conduct that is in accordance with the practical ideal of professional conduct. The segment from the 'shelf' upwards, within the range of possible courses of actions, is the proper sphere of conduct…

The 'threshold' represents the law…, the binding approach of legal conduct, the 'threshold' of permitted conduct pursuant to the law, from a legal perspective. An action at the height of the 'threshold' or beneath it constitutes… conduct that is contrary to the binding approach of legal conduct…

For the sake of accuracy, we shall mention a simple aspect of the relationship between the 'shelf' and the 'threshold', in this picture, which is not at all obvious in any context. In the picture proposed here, the 'shelf' is always higher than the 'threshold'. In reality, the relationship between a certain 'shelf' and a certain 'threshold' could, at times, be more complex… Between the 'shelf and the 'threshold' is the interim sphere. An action in this sphere constitutes improper conduct, from an ethical perspective, since it is under the said 'shelf', but it is  concurrently  deemed  a  permitted  action,  from  a  legal perspective, since it is above the said 'threshold'…"

(Ibid, on pages 23-24, original emphases – H.M)

 

 

 

Justice Yitzhak Zamir, who also dealt extensively with the distinction between law and ethics – added as follows in HCJ 2533/97 The Movement for Quality Government in Israel v. The Government of Israel PD 51(3) 46, on page 61 (1997):

 

"It is the law that determines the limit between law  and ethics. Furthermore, the law nibbles away at ethics. Rules of ethics can become rules of law. From time to time the legislator will prescribe this, and from time to time the courts will rule this, when it turns out that the power of ethics, in and of itself, does not prevent wrong behavior or severe consequences. In such an event, the law, on more than one occasion, will step in and help the ethics. See: Y. Zamir "Ethics in Politics" Mishpatim 14 (5747-5748) 250".

 

See also the opinion by Justice M. Cheshin in HCJ 1993/03 The Movement for Quality Government in Israel v. Prime Minister Ariel Sharon, PD 57(6) 817, on pages 917-918 (2003).

 

3.            In the Petition before us – we are not dealing with the legal sphere which, for example, prescribes in Section 7A of the Basic Law: The Knesset terms and conditions that allow preventing a list of candidates from participating in, or a person from being a candidate for, elections to the Knesset. This is the threshold and as such, its interpretation and application are exercised narrowly and its judicial review is meticulous.

 

See: Election Approval 9255/12 The Central Elections Committee for the 19th Knesset v. Knesset Member Hanin Zoabi (judgment from December 30, 2012; reasons from August 30, 2013, and review the references mentioned therein).

 

4.            The Petition here addresses a different matter, since it focusses on the rules of conduct that apply to a person who was elected to serve as a member of Knesset. These bind the member of Knesset by virtue of Sections 13D and E of the Knesset Members Immunity, Rights and Duties Law, 5711-1951 (hereinafter: the "Knesset Members Immunity Law"). These Rules of Ethics demand that a member of Knesset behave as expected of an elected official presiding in the Knesset, which is the "State's House of Representatives" (Section 1 of the Basic Law: The Knesset). This is the threshold. The said threshold leans on two supporting beams:

 

(a)          The pledge of allegiance, which the member of Knesset declares by virtue of Sections 15 of the Basic Law: The Knesset and Section 1(c) of the Knesset Law, 5754-1994, and on this matter I concur with the position of my colleague, the Deputy President, Justice E. Rubinstein.

 

(b) The Rules of Ethics of the "House of Representatives"

 

I shall address each of the two said sources separately below:

 

 

 

 

Pledge of Allegiance

 

5.            Since the dawn of political thought and democratic history the pledge of allegiance has had more than just ceremonial meaning, but also deep substantial relevance. Indeed, as early as in ancient Greece, the governors in the Police were required to swear their allegiance to the unification of the state, and Plato, the reputed jurist of such time, in his book: Laws (Volumes III 685 and XII 960) wrote that the pledge of allegiance has both legal significance and political importance. Aristotle, in his book: Politics (Volume III, 1285) analyzed the meaning of the pledge of allegiance as a means of securing the rule of law. See: Matthew A. Paully, I Do Solemnly Swear: The President's Constitutional Oath: Its Meaning and Importance in the History of Oaths (1999) ibid, on pages 45-52. See also: Suzie Navot "The Knesset Chapter on the Constitution Draft: Three Remarks" Mishpat U'mimshal 10 593, 624-633 (the chapter on the status of the pledge of allegiance) (5767) (hereinafter: "Navot on the Status of Pledge of Allegiance"); Yigal Marzel "On a Judge's Pledge of Allegiance" Orr Book 647 (5773-2013; hereinafter: "Marzel on the Pledge of Allegiance").

 

Therefore, anyone who crossed the threshold and his/her candidacy was approved and he/she was elected to the Knesset, must still declare allegiance in order to actually take the position, This is the significance of the pledge of allegiance, in the framework of which the member of Knesset undertakes:

 

"To bear allegiance to the State of Israel and to faithfully fulfill his mandate in the Knesset".

 

It indeed turns out that while candidates to the Knesset must first cross the threshold and after they are elected they must represent their voters – those who sent them and their party – still the common denominator for all members of Knesset is the pledge of allegiance from which the shelf is derived. If the pledge, which has a uniform wording for all members of Knesset, and which cannot be deviated from in any way – is not made, the members of Knesset cannot function in the Knesset (see: Section 16 of the Basic Law: The Knesset; HCJ 400/87 Kahane v. The Chairperson of the Knesset, PD 41(2) 929 (1987); see also: Marzel on the Pledge of Allegiance page 651 and 664-665).

 

Comparative law further demonstrates that not only is a person who is not willing to pledge allegiance not entitled to benefit from his rights in parliament, but that the "house" may deny, or de facto limit the rights and actions in parliament of a person who violates his said pledge. Compare: McGuinness v. The United Kingdom, case no. 39511/98 ECHR (1999); Spanish Constitutional Court decisions: number 101 dated November 18, 1983; number 122 dated December

16, 1983, number 8 dated January 25, 1985; number 119 dated June 21, 1990, and number 74 dated April 8, 1991. See: Navot on the Status of the Pledge of Allegiance, on pages 628-631 and see Prof. Aparicio Perez' article that is mentioned in Prof. Suzie Navot's said article, in the framework of which the following was written (free translation from Spanish by Prof. Navot):

 

"The member of parliament benefits from a dual status: the

 

 

 

one which derives from his status as an elected person and a representative, since his status stems from the fact that he was elected by the public in the framework of his party: and that of a member in a representative organ. The fact that a member of parliament is "elected" does not automatically grant him the rights in the representative organ, meaning, the parliament… This duality is possible. In certain cases, the parliament may, by virtue of its internal arrangements, even take away the mandate a member of parliament received and remove him. The fact that a person was elected as a member of parliament is a condition for him to participate in the common organ referred to as the parliament. However, in order to be included in this organ, the elected person must fulfill the material conditions to be included in this organ. Only after the member of Parliament has fulfilled these terms, can he be considered a 'parliamentarian'…"

 

It is appropriate to add here that both the European Court of Human Rights and the Spanish Constitutional Court denied judicial intervention in decisions that limited parliamentary participation from those who refused to pledge allegiance, and ruled that even the right to vote in parliament (which was not denied from Knesset Member Zoabi in this case) may be limited, provided that the prevention is meant to attain a proper goal and is proportionate. See: Navot on the Status of the Pledge of Allegiance, on page 630. With respect to the applicability of the proportionality criteria in the context of immunity and the denial thereof – also compare with that stated in the judgment in Cordova v. Italy (No. 1 and No. 2), Application no. 40877/98 and Application no. 45649/99, which was given by the European Court of Human Rights (dated April 30, 2003).

 

Rules of Ethics for Members of Knesset

 

6.            These are relevant to the matter at hand, since in the framework of Section 1A thereof they further anchored general values that apply to the member of Knesset. In the framework of these rules – the member of Knesset must (inter alia):

 

(1)          Fulfill his position out of loyalty to the basic values of the State of Israel as a Jewish and democratic State;

(2)          Act as a trustee of the public, and fulfill his duty to represent the public that voted for him in a manner that will serve human dignity, the advancement of society and the best interest of the State;

(3)          Diligently uphold the laws of the State of Israel and act to advance the principle of the rule of law;

(4)          Preserve the dignity of the Knesset and the dignity of its members, be devoted to fulfilling his duties in the Knesset, conduct himself in a manner that befits his status as a member of Knesset, and act to foster public trust in the Knesset;

(5)          Fulfill his mandate in the Knesset responsibly, honestly and fairly, out of dedication to his status as a leader in society, and strive to serve as a personal example for proper behavior;

 

 

 

(My emphases – H.M.)

 

As to the "dignity of the Knesset", Section 2 of the Rules of Ethics provides that: "The member of Knesset shall uphold the dignity of the Knesset and the dignity of its members, shall act in a manner befitting his status and duties as a member of Knesset, and shall avoid using his immunities and rights as a member of Knesset in an improper manner" (My emphases – H.M.)

 

7.            In light of Knesset Member Zoabi's conduct which was the subject of the complaints that were filed against her – it can certainly be said, as was ruled in the decisions which are the subject of the Petition, that she violated Section 1A of the Rules of Ethics for Members of Knesset, and particularly the provisions of the above sub-sections (2) and (4) of the said Rules, since, according to my position, she was not diligent about maintaining allegiance to the State (see: Yaffa Zilbershats, Loyalty to the State, Zamir Book, 491 (2005); Marzel on the Pledge of Allegiance 669-673). These violations were reflected in the "understanding" Knesset Member Zoabi exhibited towards the acts of the abductors of the teenagers: Naftali Frenkel, Gil-Ad Sha'er and Eyal Yifrah, may their memories be blessed, and in her calls to impose a siege upon Israel. In doing so she not only ethically violated her fiduciary duty towards the State of Israel, but also prejudiced her status as a trustee of the public, who is meant to act in a manner that shall serve the advancement of the best interest of the State (sub-section 1A(2) above). She also deviated from her obligation as one who is required to uphold the dignity of the Knesset and act in a manner that befits her status as a member of Knesset, and to act to foster the public's trust in the Knesset (above sub-section 1A(4)). See: Suzie Navot "The Member of Knesset as a 'Trustee of the Public'" Mishpatim 31(2) 433 (particularly ibid, on pages 518-

520) (5761). In this context my colleague, Justice S. Joubran states that in his opinion an ethics violation is possible "when a member of Knesset acts not for the advancement of the best interest of the State, as opposed to a situation in which he did not act to advance its best interest" (original emphases – H.M.) I am willing to accept this interpretation, however, even according thereto – Knesset Member Zoabi's conviction of an ethical offense is not to be cancelled. Calling for a siege on the State of Israel is explicitly an act not for the advancement of the best interest of the State and here we must clarify that for this purpose it makes no difference whether at hand is a "military siege" or a "political siege", as Knesset Member Zoabi's attorney retroactively argued before us.

 

8.            Here one should note that it is possible that MK Zoabi also violated additional Rules of Ethics however since this was not reflected in the decisions which are the subject of the Petition – I shall refrain from addressing this, just as I shall also presume (although this presumption could be disputed, in light of the provision of Section 1(A1)(4) of the Knesset Members Immunity Law) that the material immunity applies with respect to her actions, which are the subject of the complaints, in all that relates to criminal, or civil, liability (as opposed to ethical liability – see: HCJ 12002/04 Makhoul v. The Knesset, PD 60(2) 325 (2005) and see Barak Medina and Ilan Saban, "Expanding the Gap?" on the Scope of a Member of Knesset's Right to Support Resistance to the Occupation, Following HCJ 11225/03 Bishara v. The Attorney General, Mishpatim 37 219, on page

 

 

 

236, footnote 42 (5767)).

 

9.            Before ending I shall add and emphasize that I concur with the words of my colleague, Justice E. Hayut, with respect to the right to review the minutes of the Ethics Committee when at issue is a disciplinary proceeding that is being held against the member of Knesset. This is warranted by the principle of "proper process".

 

10.          In summary: All that is stated above leads to the conclusion that in the circumstances of the matter (including the actual duration of the sanctions that were imposed upon the Petitioner) – it is inappropriate to intervene in the ethical decisions that were issued in the matter of the Knesset Member Zoabi, which are the subject of the Petition.

 

I shall end with a note, as I also remarked in the hearing, that it is not for no reason that the Petitioners and their educated attorneys did not find even one case in comparative law in which a member of parliament called for a siege against his state, and was absolved.

 

Justice

 

Justice S. Joubran

 

1.            Is the Knesset's Ethics Committee (hereinafter: the "Ethics Committee" or the "Committee") authorized to apply sanctions of one kind or another due to political remarks that one of its members said or wrote outside of the Knesset, when such remarks are covered by the material immunity granted to a member of Knesset? If so, did the Ethics Committee exercise its authority lawfully? These are the two questions we are to rule on in this Petition.

 

2.            After hearing the Petition, this Court, by a majority of opinions, decided to deny it. My opinion was different, and had it been heard, we would have ruled that the Ethics Committee exercised its authority unlawfully, and we would have cancelled its decision. At the end of our judgment, we ruled that our reasons would be given separately, and now the time for the reasons has come.

 

3.            As mentioned, the Petitioner argued that the Ethics Committee lacks the authority to impose a sanction upon her for remarks that are covered by the material immunity that is granted to a member of Knesset. She also argued that the things that she said and wrote do not constitute a violation of the Rules of Ethics. My colleague, President M. Naor, is of the opinion that the Ethics Committee was authorized to address the Petitioner's remarks and that in the current case it exercised its authority lawfully. I agree with my colleague the President on the matter of the authority. I am also of the opinion that the Committee is authorized to address the Petitioner's remarks. The scope of disagreement between me and my colleague relates to the discretionary level. I am of the opinion that the Petitioner did not violate the Rules of Ethics, and therefore, the Committee's authority was exercised unlawfully. I shall add a few words on the authority level, and thereafter shall discuss the discretionary level.

 

 

 

 

The Authority Level

 

4.            The Ethics Committee operates by virtue of Section 19 of the Basic Law: The Knesset, which constitutes authorization for regulating the Knesset's work proceedings in By-Laws, and by virtue of the Knesset Members  Immunity, Rights and Duties Law, 5711-1951 (hereinafter: the "Immunity Law"). The two main provisions which are relevant to the case at hand are:

 

1.            (a) A member of Knesset shall not bear criminal or civil responsibility and shall be immune against any legal action, due to voting or due to expressing an opinion orally or in writing, or due to an act performed – in or out of the Knesset – if the vote, the expression of the opinion or the act were in the framework of fulfilling his position, or for the sake of fulfilling his position, as a member of Knesset.

 

13D. (a) The member of Knesset who committed one of the following shall be subject to be judged by the Ethics Committee of the Members of Knesset:

[…]

(3) Violated any of the Rules of Ethics.

 

5.            The Rules of Ethics appear in the Knesset's By-Laws and their power is vested by virtue of Section 13E(1) of the Immunity Law. In the matter at hand, the Ethics Committee ruled that the Petitioner violated Section 1A of the Rules of Ethics which prescribes, in the relevant parts, that:

 

1A. The member of Knesset –

(2) Is a trustee of the public and it is his duty to represent the public that voted for him in such a manner that shall serve human dignity, the advancement of society and the best interest of the State;

(4) Shall preserve the dignity of the Knesset and the dignity of its members, shall be devoted to fulfilling his duties in the Knesset, shall conduct himself in a manner that befits his status as a member of Knesset and shall act to foster public trust in the Knesset;

 

6.            The Petitioner's approach is that there is no place for the Ethics Committee to act if the member of Knesset's action is protected by material immunity. According to this approach, Section 1(a) of the Immunity Law requested to exclude  these matters from the Committee's authority. This approach was denied in HCJ 12002/04 Makhoul v. The Knesset PD 60(2) 325 (2005) (hereinafter: the "Makhoul" Case). In that matter, it was ruled that the Ethics Committee's decision is not a "legal action" which is included in Section 1(a) of the Immunity Law, and therefore a member of Knesset is not immune from facing it. This ruling coincides with the purpose of Section 13D of the Immunity Law, which anchors the Ethics

 

 

 

Committee's authority to address the violation of the Rules of Ethics and to apply sanctions on members of Knesset for such violations. This ruling also coincides with the interpretive proceeding which should be applied to Sections 1 and 13D of the Immunity Law. Thus, it was ruled in the Makhoul Case that normative harmony requires the interpretation that at hand are two provisions which complement each other, rather than there being a contradiction between two provisions that are mutually exclusive (ibid, on pages 334-335). Therefore, I am of the opinion that that stated in Section 13D complements that stated in Section 1 and does not contradict it.

 

7.            The Petitioner raised an additional argument on the authority level, that the Ethics Committee is not authorized to discuss political remarks by members of Knesset and that its authority is limited to remarks that substantially disturb the work of the Knesset and relate to the social relationship within the Knesset. Indeed, the position of the Ethics Committee in its decisions is that "in all that relates to political remarks, the Committee's position is that in general they should be dismissed in limine, even if at hand are extreme and outrageous remarks". However, I am of the opinion, as is my colleague, the President, that this does not mean that the Ethics Committee lacks authority to discuss these remarks (see paragraphs 27-28 of her opinion). Indeed, my opinion is that one must distinguish between remarks that are only political, and remarks that constitute bad-mouthing and slandering of individuals and publics. However, I am of the opinion that the distinction does not have to be made at the authority level, but rather at the discretionary level. Meaning, in the scope of judicial review which should be applied on decisions that discuss these remarks and the scope of protection that should be given to remarks of such nature, as I shall elaborate below.

 

The Discretionary Level

Limiting the Freedom of Political Expression of an Elected Official

 

8.            At the discretionary level, the Court examines the merits of the Ethics Committee's decision. In the case at hand, whether the Petitioner, through her remarks, violated the Rules of Ethics by virtue of which she was convicted. This matter is directly related to the question of members of Knesset's freedom of political expression and the question of the limitation thereof. I am of the opinion that the point  of reference in this matter lies in the recognition of the importance of guaranteeing the existence of elected official's freedom of political expression and of striving to promote it.

 

9.            "The political expression – the speech, the article, the interview – are the member of Knesset's primary working tools" – so wrote President A. Barak in HCJ 11225/03 Knesset Member Dr. Azmi Bishara v. The Attorney General PD 60(4) 287, 326 (hereinafter: the "Bishara" Case). Political expression is the core of parliamentary activity and constitutes a primary tool for the member of Knesset to perform his main duty – expressing his position and the positions of the public that voted for him on public matters.

 

10.          In order to guarantee that the member of Knesset shall be able to faithfully fulfill his position and represent the public that voted for him while giving free and full expression of his opinions and perspectives, without fear or concern, the legislator

 

 

 

chose to grant the members of Knesset material immunity against being criminally charged or against a civil law obligation, for remarks that were expressed in the framework or for the sake of fulfilling their position. This immunity is essential to guarantee the democratic character of the ruling government. In the Bishara Case it was ruled as follows:

 

"The purposes underlying the material immunity are varied. They are meant to protect the fundamental political freedoms. They are meant to allow proper activity of the legislative authority. They reflect a desire to guarantee the member of Knesset's independence and freedom of action. They are meant to strengthen the democratic rule. On the other hand, one must not ignore the other (general) purposes of the Immunity Law" (ibid, on page 323)

 

One can learn of the importance of protecting the members of Knesset's freedom of political expression, which is reflected in the material immunity granted to them, and of the tight linkage between it and the proper activity of the democratic process, from the spirit of the words of President S. Agranat in Criminal Appeal 255/68 The State of Israel v. Avraham Ben Moshe, PD 22(2) 427, 435 (1968), when he examined the actions of a person who was harassing a member of Knesset due to words spoken by such elected official:

 

"The right of a member of a house of representatives, in this forum or elsewhere, to voice his views on the "cutting-edge" political questions, without fear and concern that he will be harmed by anyone who does not support such perspectives or who is convinced that they are dangerous for the nation – such right is but only a tangible reflection of the tight linkage that exists between the principle of freedom of expression and dispute and the proper activity of the democratic process. Moreover, due to the significant importance we attribute to the later aspect of the discussed principle, the legislator deemed it fit to grant the members of Knesset an  entire system of privileges, which are meant to guarantee that each of them shall be able to express their opinion and formulate their positions, regarding the political issues that require solution and decision, in an open and free manner and without them having to be accountable for them to any person or authority. I mean the various immunity rights… one of which is that which is prescribed in Section 1(a)…"

 

11.          The Israeli legislator even adopted a rather broad model of material immunity in Section 1(a) of the Immunity Law. This immunity applies also to actions and not only to voting or expressing an opinion and spans over the activity of the member of Knesset within the walls of the Knesset and outside thereof, and applies also after he ceased being a member of Knesset (see: HCJ 620/85 Miari v. The Chairperson of the Knesset, PD 41(4) 169, 204 (1987) (hereinafter: the "Miari" Case); the Bishara Case, on page 301). The broad scope of the material immunity indicates the great importance the legislator attributes to protecting the

 

 

 

members of Knesset's freedom of expression. This protection is not meant to serve the member of Knesset's personal well-being, but rather is meant to guarantee the right of all of the citizens to full and effective political representation – that their opinions be heard, through their elected representatives, in the public discourse, in general, and in the house of legislators, in particular.

 

12.          It shall be noted that guaranteeing the existence of freedom of political expression is also important when at hand are aggravating and outrageous remarks and ideas, and it is especially important for members of Knesset who express ideas that are perceived as such by the majority of the public. Indeed "Freedom of expression is also the freedom to express dangerous, aggravating and deviant opinions, which disgust the public and which it hates (HCJ 399/85 Kahane v. The Executive Committee of the Broadcast Authority, PD 41(3) 255, 279 (1987)). The essence of the importance of this right is granting protection to words that are not popular and not in consensus and which can even grate on the ears.

 

13.          There is no denying that guaranteeing the existence of freedom of free political expression and minimizing the limitation thereof is especially critical for members of Knesset who belong to minority groups in the population. My colleague, Justice E. Hayut, elaborated in her opinion on the special importance of protecting the freedom of expression of minority groups in general. I am of the opinion that when members of Knesset are at issue, this is all the more relevant. There is great significance to protecting the freedom of expression of minority groups in the parliament and restraining the infringement thereof. So as to guarantee effective and egalitarian representation of the minority groups in the parliament, in a manner in which their voice shall be heard and not excluded. This approach is grounded in the rulings of this Court. For example, in the Bishara Case, President A. Barak stated, in the context of the members of Knesset's material immunity, that protecting freedom of expression is "vital particularly for citizens who are members of minority groups in the population. In this sense the material immunity also advances civil equality by also protecting the right of the members of the minority groups in the population to full and effective political representation, and protects them by protecting the member of Knesset who is representing their affairs and their  perspectives against the power of the majority" (ibid, on page 323).

 

14.          This approach was also recognized in the judgment of the European Court of Human Rights (Szel v. Hungary, 44357/13 (sep. 16, 2014) at para 69; Karacsony

v. Hungary 42461/13 (sep. 16, 2014) at para 72), to which my colleagues also referenced. As mentioned, the European Court cancelled the conviction of an ethical offense of four opposition members of Parliament in Hungary, due to their remarks in the framework of acts of protest. In that matter, it was ruled that in a democratic society, freedom of expression is a tool of supreme importance for members of Parliament. It was also ruled that this freedom of expression is particularly necessary for members of Parliament who belong to minority groups, in order to guarantee their right to express their positions and the right of the public to hear these positions.

 

 

 

 

One can also learn of the importance of protecting freedom of expression of minority groups from the spirit of the judgment of the European Court of Human Rights in Jerusalem v. Austria ECHR 26958/95. In that case it was ruled that interfering with an opposition member of parliament's freedom of expression calls for broader scrutiny by the Court:

 

"Interference with the freedom of expression of an opposition member of parliament, like the applicant, calls for closest scrutiny on the part of the Court" (at para 36)."

 

The Ethics Rules

 

15.          As to the ethics rules. As mentioned, the point of reference in any legal examination of the matter being discussed – including the examination of the ethics rules - is the recognition of the supreme status of freedom of expression in our legal system and the importance of minimizing interference therewith. I agree with my colleague, the President, that freedom of expression also projects onto the laws of ethics that apply to members of Knesset (see paragraph 27 of her opinion). This Court has ruled in the past that "Freedom of expression projects onto and has implications for all the other branches in our legal system, including disciplinary rules" (Bar Association Appeal 1734/00 Tel Aviv Jaffa District Committee of the Bar Association v. Sheftel, paragraph 25 of the judgment of (then) Justice M. Naor (January 1, 2002)). This Court applied a similar approach with respect to the disciplinary rules that apply to civil servants (Civil Service Disciplinary Appeal 5/86 Sapiro v. The Civil Service Commissioner, PD 40(4) 227 (1986) (hereinafter: the "Sapiro" Case)). In that case it was ruled that:

 

"We must be diligent about the promotion and existence of freedom of expression, even in light of the reasonable assumption that there is a difference, in terms of the range of permitted actions, between an ordinary citizen and a civil servant, and consequently there are certain limitations on the public remarks by a civil servant […], the qualifications that are imposed upon civil servants, should, to the extent possible, be minimized. Additionally, general and unspecified reservations should not be imposed upon the civil servants, but rather their classification should be limited to those circumstances in which there is near certainty of damage or harm to the public service or to the interests it serves (ibid, on pages 236-237)

 

I am of the opinion that this is all the more relevant when at issue is the limitation of members of Knesset's freedom of political expression, since their political expression is the main tool for them to perform their duty. Therefore,  the question is what are the criteria for ruling that a member of Knesset violated the ethics rules? I am of the opinion that one can learn of the proper criteria from looking at the laws of the members of Knesset's material immunity. As mentioned, the broad scope of material immunity that is granted to the members of  Knesset  embodies  the  supreme  importance  the  legislator  attributed  to

 

 

 

protecting their freedom of expression. I have listed the reasons for this in the paragraphs above, and, as I have demonstrated, previous rulings of this Court have also done this well. It appears that these reasons are relevant also when at issue are the ethics rules. My colleague, Deputy President E. Rubinstein is of the opinion that "Particularly due to the broad material immunity, the Rules of Ethics are the little that can be done to restrain deviations, 'a pressure release valve', to maintain a framework of parliamentary norms" (paragraph G of his opinion). Indeed, a conviction of an ethical offense is generally considered less severe than a civil or criminal conviction against which the material immunity protects, and generally the sanctions accompanying it are less severe. It appears that this also justifies distinguishing between the extent of the democratic tolerance which applies in each set of rules. Thus, there can be remarks that do not cross the red lines that are defined by the material immunity and are covered thereby, while they do constitute ethical violations. However, a conviction of an ethical offense is also not a trivial matter, and the sanctions accompanying it can be especially severe, as in the current case – removal from the sessions of the Knesset's plenum and its committees for a period of six months. This can create a chilling effect for members of Knesset. In my opinion, this approach requires the Ethics Committee to apply restraint when limiting members of Knesset's freedom of expression and convicting them under the laws of ethics, for political remarks.

 

16.          It is important to note in this context that that which is stated above is relevant when at issue is the violation of an ethical provision in the matter of a member of Knesset's purely political remark - as in the case at hand – and not when dealing with remarks that constitute slander or bad-mouthing. The reason for this is the degree of importance that should be attributed to political expression, since it promotes a free market of opinions and reflects the perspectives of the voting public. This is in contrast with the second type of expressions which do not promote these values, but rather harm the status and dignity of the Knesset and deteriorate the public discourse in Israel. This also coincides with the approach of the Ethics Committee itself, as it emerges from its decisions:

 

"To the extent possible, the limitation of the members of Knesset's freedom of political and ideological expression should be avoided, even when the words they say are harsh and outrageous. The right of freedom of expression constitutes a tool of supreme importance for members of Knesset, within the Knesset and outside thereof, the essence of the importance of this right is granting protection to words that are not popular and which can even grate on many ears. However, if, in all that relates to political remarks the position of the committee is that that in general they should be dismissed in limine, even if at hand are extreme and outrageous remarks, then with regard to remarks that constitute bad-mouthing, slandering, mudslinging and humiliating individuals and publics, the committee's position is materially different. (Decision 2/19 of the Knesset's Ethics Committee "In the Matter of Remarks by Members of Knesset" (July 2, 2013)).

 

 

 

17.          In the case before us the Ethics Committee decided that the Petitioner violated both of the values prescribed in Sections 1A(2) and 1A(4) of the Rules of the Ethics, which read as follows:

 

1A. The member of Knesset –

(2) Is a trustee of the public and it is his duty to represent the public that voted for him in such a manner that shall serve human dignity, the advancement of society and the best interest of the State;

(4) Shall preserve the dignity of the Knesset and the dignity of its members, shall be devoted to fulfilling his duties in the Knesset, shall conduct himself in a manner that befits his status as a member of Knesset and shall act to foster public trust in the Knesset;

 

The Ethics Committee ruled that "The Member of Knesset's words that were written and spoken in sensitives times do not coincide with the best interest of the State, even if we grant this term an expansive interpretation, and they constitute a violation of the duty of allegiance that applies to members of Knesset". It was further ruled that "The words severely prejudice the public's trust in the Knesset and its image, which is also reflected in the large number of complaints that were filed with the Committee".

 

18.          The above-mentioned Section 1A prescribes basic values which outline general criteria for the conduct of members of Knesset. As my colleagues, I am of the opinion that even though at hand are basic values that do not delineate a sanction alongside them, they benefit from an independent status and members of Knesset who act in contradiction to that stated therein, can be convicted by virtue thereof. Thus, a conviction of an ethical offense based on Section 1A(4) would be appropriate when a member of Knesset prejudices the harms the Knesset or the members thereof (the Makhoul Case; Rules of Ethics Preparation Committee Report, December 2006, on page 46), or when a member of Knesset acts in a manner that prejudices the public trust. In my opinion, it appears that a conviction of an ethical offense based on Section 1A(2) would be appropriate when a member of Knesset acted not for the advancement of the best interest of the State as opposed to a situation in which he did not act to advance its best interest. Such interpretation takes into account that neutral actions by members of Knesset which on the one hand do not advance the best interest of the State, and on the other hand do not harm it, shall not be included in the prohibition.

 

19.          According to my position, an interpretation that expands the limits of patience and tolerance is appropriate in this matter as well. In my opinion, one must act with a strict and stringent criterion when determining that a member of Knesset violated the values of "advancing the best interest of the State" and "fostering the public's trust". General and unspecified limitations should not be imposed upon a member of Knesset, but rather the classification should be limited to those extreme cases. Consequently, the member of Knesset should be granted broad freedom of action and his actions and words should be interpreted liberally,

 

 

 

such that only the extreme and clear substance of the contents of his words can be the basis for his conviction (compare: the Miari Case, on page 212). There are a number of reasons for my said position. Firstly, the specific provision deals with political remarks, which by their nature are intertwined with the member of Knesset's duties. As such, members of Knesset who engage in political expression as a main part of their position, are at a high risk of committing this ethical prohibition (compare: the Bishara Case, on page 326); Secondly, in light of the broad language in which the values of "advancing the best interest of the State" and "fostering the public's trust" are drafted, there is a concern that if members of Knesset shall be exposed to severe sanctions, which can reach six months of being removed from the sessions of the Knesset's plenum and its committees (Section 13D(d)(4) of the Immunity Law), this could chill their ability to express themselves without fear also in cases in which what they are saying does not constitute an ethical offense. Thirdly, members of Knesset often express themselves in controversial matters in a manner which could appear to be callous and outrageous to part of society. This is especially true in the divided Israeli society (see: E. Benvenisti "Regulating Freedom of Expression in a Divided Society" Mishpatim 30 29 (1999)). Hence, it is natural that in light of the Petitioner's perspectives and the platform of her party, she will find herself expressing positions regarding the Israeli-Arab conflict, and the risk that her statements shall be interpreted by a large part of society, as statements that harm the State's best interest, is great. (Compare: the Bishara Case, on page 327).

 

20.          Given the above, one must examine whether the Petitioner, through her remarks, violated the Rules of Ethics. Meaning, is the Ethics Committee's decision which is the subject of the Petition, lawful. Examining the merits of the Committee's decision raises a question of the scope of judicial review of the Ethics Committee's decisions. I shall now address the examination of this scope and thereafter examine, in the form of applying the general rule to the specific case, whether the current case justifies our intervention.

 

The Scope of Judicial Review of the Ethics Committee's Decisions

 

21.          Case law prescribes that the scope of judicial review is impacted by the type of decision which is the subject of the review (see: HCJ 652/81 Knesset Member Yossi Sarid v. The Chairperson of the Knesset PD 36(2) 197 (1982)). As my colleague, the President, elaborated, it was ruled in the Makhoul Case that in general the Ethics Committee has broad room for maneuver and consequently the room for judicial review is relatively narrow (ibid, on page 343). I agree with this position, however, each case is examined on its own merits and the scope of the judicial review is determined in accordance with the circumstances of each case. In the Makhoul Case, the main reasons for determining the relatively narrow scope of judicial review were that the Ethics Committee's decisions are closer to the sphere of the Knesset's internal matters; that its decisions harm the member of Knesset in a relatively mitigated manner; and that at issue are matters which generally have a small impact outside of the Knesset. Therefore, it was ruled that the extent of this Court's intervention shall be less than that which is exercised with respect to other quasi-judicial decisions that are in the framework of the Knesset's authority. However, these reasons are not relevant in the current case. Since at hand are political remarks that were said outside of the Knesset and

 

 

 

which do not relate to its internal affairs or its conduct or to the conduct of any of its members. The Ethics Committee's decision in the current case harms the core of the freedom of political expression, and as such its impact outside of the Knesset is not small. In my opinion in such cases, when the Committee examines purely political remarks, there is no justification for the judicial review to be narrower that the judicial review of other quasi-judicial decisions.

 

22.          This ruling coincides with the ruling in the Makhoul Case, that when examining the Ethics Committee's decision, the Court shall take into consideration those consideration that relate to the severity of the infringement of the basic rights and the proportionality of the sanction that is imposed by the Ethics Committee. Indeed, ethics rules are not a cover for infringing basic rights that are granted to a member of  Knesset. When the Knesset wishes to exercise its authority  and qualify the rights granted to a member of Knesset by law, it must comply with the legal criteria that are required for exercising this authority (see: the Miari Case, on page 196). The more severe the infringement of the member of Knesset's basic rights, and the more the sanction for the act deviates from the proper extent, the more this Court will be willing to intervene (see: the Makhoul Case, on page 344). In the case before us the member of Knesset's freedom of expression was infringed. The fact that at hand is a member of Knesset from a minority group exacerbates the infringement and justifies broader judicial review. In this matter, the words of Justice E. Rivlin in the Bishara Case, are relevant:

 

"In any event the special significance of judicial review in those cases in which basic human rights are at issue, should be recognized. It is here that it is important that the judicial review exhaust its full power and ability. This ability shall serve it if it shall succeed in refraining from scattering its legal and social resources which are nurtured by the public's trust, when the scope of deference expands. This is true in general, and particularly when immunity relating to freedom of expression is at issue, and in the case at hand – not just expression, but political expression, and not just political expression, but political expression of a member of Knesset, and not just a member of Knesset, but a representative of a minority group" (ibid, on page 337) [emphases added – S.J.]

 

From the General Rule to the Specific Case

 

23.          I shall now examine the Petitioner's remarks in light of that stated. I shall state at the outset that in my opinion the Petitioner did not violate the Rules of Ethics. I did not reach this conclusion easily, and it is not obvious. Indeed, in my opinion this is quite a borderline case. The Petitioner's statements, at the timing in which they were said, are harsh and in my opinion near the line beyond which it could not be said that they comply with the Rules of Ethics. However, in my opinion, given the circumstances of the matter, and considering the entire considerations, the proper conclusion is that ultimately the Petitioner did not violate the Rules of Ethics. The main reason for this is that one cannot extract any clear and unequivocal content, that amount to a violation of the ethical values, from her

 

 

 

remarks, but rather her remarks were vague, some had reservations attached and some had explanations that were later attached, as I shall immediately describe in detail.

 

24.          As for the call in the article dated July 13, 2014, to impose a siege on the State of Israel, the Petitioner did not state what type of siege she is calling for – whether a political siege or a military siege. The Petitioner's attorney claimed in the hearing before us that the Petitioner meant the imposition of a political siege and not the imposition of a military siege. I agree with my colleague the President that the words of the Petitioner's attorney were stated retroactively and that the Petitioner should have presented this explanation to the Ethics Committee. However, I am of the opinion that this interpretation that was suggested by the Petitioner's attorney – that the call is for a political and not a military siege – is at least possible, and could be implied from the words the Petitioner wrote. In this context, I do not agree with my colleague, the Deputy President, that it is very difficult to interpret the call "to impose a siege on the State of Israel" as only a political siege, but rather as a military siege.

 

25.          As to the Petitioner's statements in the interview dated June 17, 2014, that the abductors of the teenagers "Are not terrorists", these statements were accompanied at the time they were said, by a reservation from the act of abduction, as it was said "even if I do not agree with them". Following the said interview, the Petitioner explained in the media that she objects to the abduction, that she does not agree with this act and that she objects in principle to harming civilian population, Israeli and Palestinian. As to her remark "They are not terrorists", she explained that it is her principle position not to use the term "terror" in the Hebrew press. I am of the opinion that in the circumstances of the matter, these words by the Petitioner somewhat soften her remarks in the interview. There are two reasons for this. Firstly, the statement "They are not terrorists" was made orally, in an interview, as a response to the interviewer's question. Meaning, the Petitioner did not have time to redraft or refine her statements, or retract them before they were made public. A similar position was expressed in the European Court of Human Rights in Mondragon v. Spain 2034/07, where it was ruled that the Court must take into account the fact that the statements were made orally during a press conference so that it was not possible to redraft or retract the statements before they were made public:

 

"The Court further takes account of the fact that the remarks were made orally during press conference' so that the applicant had no possibility of reformulating' refining or retracting them before they were made public (at para 45)".

 

Secondly, the Petitioner provided explanations in the media to the meaning of her remarks with regard to the teenagers' abductors, in order to convince the public that she objects to the act of abduction and to harming civilian population. The Petitioner explained that the statement "They are not terrorists" stems from her principle position against using the term "terror" in Israeli media, and not from her identifying with the act of abduction. Even if these explanations which the Petitioner provided to the media, do not reflect her inner feelings, the fact that they are possible explanations, is sufficient to somewhat soften her remarks. I

 

 

 

agree with the position of my colleague, the President, that extreme acts or expressions which legitimize acts of terror and which encourage and support violence against civilian population, cannot overcome the ethical prohibitions. However, as I explained above, this is not exclusively and unequivocally implied from the Petitioner's statements, in light of her reservations when they were said and in light of her later explanations. One must also add that the Attorney General ruled on July 24, 2014, that a criminal investigation shall not be opened against the Petitioner for her remarks regarding the teenagers' abductors. The explanation given to this by the deputy Attorney General is that the Petitioner's reservation from the act of abduction "creates difficulty in perceiving the statements as inciting abduction". It appears, from all of that stated above, that one cannot extract clear and unequivocal content from the Petitioner's remarks that amount to a violation of the ethical prohibitions.

 

26.          As for the timing in which the statements were said, I concur with the remark by my colleague, Justice E. Hayut, that one must set uniform criteria for the protection of freedom of expression during times of war and times of calm (see paragraph 4 of her opinion). In my opinion, the supreme status of the freedom of expression is also reserved during times of war. The Ethics Committee also ruled in its decision which is the subject of the Petition that "The right of members of Knesset to express positions that are not in consensus and to express public criticism on the government, is reserved also during times of war". It shall also be noted that the distinction between times of calm and times of crisis is not always sharp and clear, particularly in the Israeli reality. In this context the words of President A. Barak in HCJ 7052/03 Adalah – The Legal Center for Arab Minority Rights in Israel v. The Minister of Interior, 61(2) 202 (2006), to which my colleague referred, are relevant:

 

"Furthermore, it is not possible to make a sharp distinction between the status of human rights during times of war and their status during times of peace. The line between terror and calm is thin. This is true everywhere and certainly in Israel. It is not possible to sustain this over time. We must treat human rights seriously both during times of war and times of calm" (ibid, in paragraphs 20-21).

 

However, as my colleague, Justice E. Hayut, stated "the likelihood and feasibility of harming other essential interests could be of different intensity during times of crisis."

 

27.          In summary, in light of the great value of granting members of Knesset free political expression and minimizing the limitation thereof as much as possible, particularly when at issue are members of Knesset who belong to  minority groups, and in light of the broad language of the ethical provisions by virtue of which the Petitioner was convicted, the conviction of members of Knesset by virtue of these provisions should be limited only to cases in which the content of the statements is clear, unequivocal and extreme. In the case before us, I am of the opinion  that one  cannot extract clear and unequivocal content from the Petitioner's statements, both in light of her reservations from the act of abduction while making the remarks and in light of her later explanations in the media.

 

 

 

Therefore,  it is my position that  the  decision of the  Ethics  Committee  was reached unlawfully.

 

28.          In light of all that stated, if my opinion were to have been heard, we would have accepted the Petition and cancelled the Ethics Committee's decision in the Petitioner's matter.

Justice

 

It was decided by a majority of opinions as stated in the judgment of President M. Naor.

 

Given today, the 21st of Shvat, 5775 (February 10, 2015).

 

President            Deputy President            Justice

Justice  Justice 

 

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